Master’s Programme
MASTER’S THESIS
Tran Ngoc Ha
Independence and Responsibility Mechanism of Judges in Vietnamese and English Law
Supervisors:
Ass.Prof.Dr. Mai Hồng Quỳ
Prof. Michael Bogdan
Acknowledgements
First of all, I would like to thank my family, especially my husband, for their emotional share and care of my little daughter during the time of this course. I cannot pursue the course until present without my family’s encouragement.
I would like to express my deepest gratitude to my supervisors, Assistant Professor Mai Hong Quy and Professor Michael Bogdan for their sympathy on my private difficulties and for their valuable directions on my thesis. Assistant Professor Mai Hong Quy has supported me a lot in deciding the topic of thesis. Professor Michael Bogdan gave me useful advices during the time in Lund and during the time of writing this thesis. I also have learnt a lot from his way of working and teaching.
My gratitude also goes to the other Vietnamese, Swedish, and American professors, particularly Assistant Professor Christopher Wong, who devotedly provided us with professional knowledge and research methodology during their lectures in Vietnam and Sweden. My thanks also go to Sida for funding the Joint Master’s Program that I attended.
I am sincerely grateful to friends and colleagues who provide me with kind help through out the time I was doing this research. I thank Assistant Professor Truong Dac Linh for his devoted suggestions for my thesis. I thank Doctor Do Van Dai for his support with concerned materials. Last but not least, I grateful to my colleagues at the International Law Faculty, who shared my work during the time of this course.
My supervisors gave the best directions. Therefore, if there are some mistakes in this thesis, they totally belong my own responsibility. Needless to say, in spite of these acknowledgement, I bear personal responsibility for ideas and arguments presented in this thesis.
Table of Content
Acknowledgements...... 1
Table of Content...... 2
Abbreviations...... 4
Executive Summary...... 5
1. Introduction...... 6
1.2 Rationale...... 6
1.3 Purposes...... 6
1.4 Delimitation...... 6
1.5 Research methods and Materials...... 6
1.6 Disposition...... 8
2. Independence of judges...... 8
2.1. Concept of independence of judges...... 8
2.1.1 Independence and impartiality of judges...... 11
2.1.2 Independence of judges – individual independence and independence of the whole judiciary system – institutional independence 13
2.2. International legal provisions on independence of judges...... 14
2.2.1 LAWASIA’s Principles on Judicial independence...... 14
2.2.2 The International Bar Association’s Code of Minimum Standards of Judicial Independence 16
2.2.3 Universal Declaration on the Independence of Justice...... 17
2.2.4 United Nations’ Basic Principles on the Independence of the Judiciary.....17
2.2.5 The Universal Charter of the Judges...... 18
2.3. Individual independence of English judges...... 18
2.3.1 Categories of judges...... 19
2.3.2 Security of tenure...... 20
2.3.3 High salaries...... 21
2.3.4 Transparent appointment...... 22
2.4. Vietnamese legal provisions on principles of the independence of judges....23
2.4.1 Provisions on independence of judges in the legal documents issued before the 1992 Constitution 23
2.4.2 The substance of the concept of judges’ independence under current law...25
2.5. Independence of Vietnamese judges in reality...... 26
2.5.1 General remarks on the independence of Vietnamese judges...... 26
2.5.2 Threats to independence of Vietnamese judges...... 28
3. Responsibility mechanism of judges...... 34
3.1. Overview of responsibility mechanism for judges...... 34
3.1.1 Concept of responsibility mechanism for judges...... 34
3.1.2 The tension between responsibility and independence of judges...... 35
3.1.3State’s responsibility and judges’ responsibility...... 37
3.2. International legal provisions on responsibility of judges...... 38
3.3. Responsibility of English judges...... 39
3.3.1 Overview of responsibility mechanism of English Judges...... 39
3.3.1 Judges’ professional discipline...... 42
3.3.3 Judicial immunity...... 43
3.4. Practice of responsibility mechanism for Vietnamese judges ...... 44
3.4.1 General remarks on responsibility mechanism for Vietnamese judges at the moment 44
3.4.2 Problems of responsibility mechanism for Vietnamese judges...... 46
4. Conclusion...... 53
Table of Statutes and Other Legal Instrument...... 54
Bibliography...... 56
Abbreviations
CA 1971 / Court Act 1971CRA 2005 / Constitutional Reform Act 2005
IBA / International Bar Association
JAC / Judicial Appointments Committee
JACO / Judicial Appointments and Conduct Ombudsman
LAWASIA / The Law Association for Asia and the Western Pacific
SCA 1981 / Supreme Court Act 1981
SPC / Supreme People’s Court
UN / United Nations
Executive Summary
Improving the quality of judicial activities is a very important duty of the Vietnamese judiciary in the coming time under the light of Resolution No.49 and Resolution No.08 of Political Bureau about the judicial reform strategy. Judges plays the decisive role to achieve that purpose because the quality of the judicial activites is assessed on the ground of final outcomes of cases. However, the current practice shows that independence of Vietnamese judges is violated seriously by manifold threats from outside and eventually from the judiciary. Judges’ working conditions are not guaranteed adequately by law. The salaries of judges cannot afford their daily life, the security of tenure is not ensured since it is too short and judges are pressed by the reappointment mechanism. Besides, the judicial ability of judges is a big problem in present, and this is one of reasons leading to the dependence of judges to their leaders/superiors. Additionally, responsibility mechanism for Vietnamses judges contains so many unreasonable problems, especially the disciplinary procedures with two kinds of discipline, professional discipline and civil servant discipline, and the personal remedial responsibility.With current responsibility mechanism, judges face a lot of threats which are harmful to their independence. Therefore, ensuring independence of judges and setting up a reasonalble accountability mechanism for them are urgent duties of the judiciary to make the positive changes for the judicial reform. In order to achieve the effective results, it is very useful for Vietnam to learn from the international legal provisions about judge’s independence and responsibility as well as the experience from countries which have the judiciary with high independence. Experiencesof the English judiciary are very useful for Vietnamese judicial reform, particularly in protecting independence of individual judges.
Introduction
1.Introduction
1.1Rationale
According to the content of the Resolution No. 49 on 2nd June 2005 of the Political Bureau about judicial reform, improving the quality of judiciary activities is the main aim of judicial reform strategy. Judges play a very important role to achieve this aim because the independence of judges is a decisive factor to have objective and just judgments. The principle “during a trial, the judges are independent and shall only obey the law” is a constitutional provision since 1946. However, in present the independence of judges is a topical matter in Vietnam since there are so many cases proving that the independence of judges are not ensured in judicial activities. The lack of independence of judges has affected the quality of trial so much, and as a result, it causes many bad consequences to society, especially belief of people to justice. According to the Annual Report of the Supreme People’s Court in 2007, there are 35 judges disciplined and prosecuted criminal liability. This situation is caused by many reasons both from legal provisions and the judges themselves, for example, the appointment of judges, the low salaries, the organization of court system, the relationship between judges and their superiors…So, ensuring the independence of judges has become very necessary matter to improve the quality of judicial activities.
One of the factors, which cannot be separated from the independence of judges, is responsibilities mechanism of judges, and this is considered indispensible corollary of the independence. Judges must be independence, but it does not mean that they can do anything and have no responsibility. Responsibility mechanism is very important to make judges independent. However, from another perspective, if judges’ responsibilities are not provided suitably, it will affect badly to judges’ judgments. As a result, it is essential to balance the independence and responsibilities of judges. Vietnamese law has also provided on judges’ responsibilities, but the provisions are not effective in fact and there are a lot of gaps in this field. Basing on the reality mentioned above, I decide to choose the matter of independence and responsibility mechanism of judges for my master thesis.
1.2Purposes
This thesis has the following purposes: The first purpose is examining main theoretical aspects of independence of judges and their responsibility mechanism. With this purpose, the thesis is expected to examine the notion of independence and responsibility mechanism of judges, and the relations of these issues with concerned matters such as impartiality of judges, institutional independence, the relation between independence and responsibility, and relation between individual accountability and State‘s responsibility, ect. The second purpose is defining and analyzing threats to independence of Vietnamese judges and problems in their accountability mechanism. In addition, the last purpose is suggesting recommendations for guaranteeing the independence of Vietnamese judges as well as building a reasonable responsibility mechanism for them based on selective reference from the international instruments and English law.
1.3Delimitation
By setting the above purposes, the thesis will research on legal provisions of independence and accountability of judges in international instruments, English law, and Vietnamese law. The thesis focuses on the analyzing the critical practice of Vietnamese judges’ independence and responsibility as well as concerned provisions. International provisions and English law are considered reference sources to recommend solutions for Vietnamese judges.
Within the delimitation of master thesis, it is impossible to study all problems relating to independence and responsibility of Vietnamese judges. The following basic elements impacting judges’ independence will be researched: term of office, salary, appointment mechanism, qualifications, discipline, and personal remedial responsibility.
1.4Research methods and Materials
In this thesis, the three major research methods are used: the analytical, the comparative, and the descriptive.
The three methods are used in each chapter. The analytical is used to deal with theoretical matters of independence and responsibility of judges, and to examine negative problems both in law and in practice harmful to Vietnamese judges’ independence. The descriptive method is used to study on international instruments and provisions of English law. The comparative method is used to compare the principles guaranteeing the individual independence developed in numerous international instruments, and to make comparison betweenVietnamese law and English as well as international provisions in order to find out reasonable recommendations for Vietnam.
Various material sources are used in this thesis consisting of international instruments, national statutes, books, monographs, and articles from law journals, and materials from the internet.
1.5Disposition
In accordance with the purposes, the thesis are structured as follows:
Introduction includes these issues: Rationale, Purposes, Delimitation, Research methods and Materials, Disposition.
Chapter 1“Independence of judges” will research theoretical matters of individual independence of judges including its notion, relations with impartiality and institutional independence. This chapter also give the readers knowledge of concerning international instrument and English law on ensuring independence of judges. The central part of this chapter is research on independence of Vietnamese judges.
Chapter 2 “Responsibility Mechanism of Judges” focuses on the responsibility of judges as an important factor supporting the independence of judges. This chapter will also examine theoretical aspects of responsibility, international and English legal provisions on this matter, and analyzing problems of responsibility mechanism of Vietnamese judges in present.
2.Independence of judges
2.1Concept of independence of judges
Independence of judges is important in every area of the law. For just and effective judgments, judges must be independent. It is impossible to have an independent judiciary without independent judges. The importance of judges’ independence is realized by all nations, all states since it is the key factor making a strong judiciary, building a democratic society and protecting human rights. Being the guardian of justice - an elevated but dangerous duty - judges always face many threats. Threats to the individual judges are diversity. They are also very dangerous because they target directly at the individual judges, who exercise judicial function and therefore are greatly potential of perverting justice. The executive, an executive’s or judicial officer may have the power to raise or to reduce the judge’s salary, to discipline judge or to transfer judge to another court. The chief judge in a court may have the power to assign cases to judges. Beside the influence may from the other state institutions and superiors, judges may also put themselves in danger of threat from the criminal network. Impact from the press and other social and political forces may also be interference with making decision process of judges.[1] All of these powers may be exerted to affect the course of action of a targeted judge when deciding on a case. In order to be impartial to give out just judgments, judges must not be affected by those threats. An independent judge, therefore, cannot be affected by any threat in making decision. Independence of judge has been mentioned in a lot of documents in various ways.
Independence of individual judges are stated strongly in the Universal Declaration on the Independence of Justice 1983 that judges “shall be free to decide matters before them impartially, inaccordance with their assessment of the facts and their understanding of the law without any restrictions, influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason. In the decision-making process, judges shall be independent vis-à-vis their judicial colleagues and superiors”[2]
In the Universal Charter of the Judge 1999, independence of judge is approached by pointing out from what and who judge must be free. “The judge, as holder of judicial office, must be able to exercise judicial powers free from social, economic and political pressure and independently from other judges and the administrative of the judiciary”.[3]Consequently, negative external interference in judge’s professional activities may fromnot only the judicial system but also their colleagues, superiors, and administrators.
Another understanding of judge’s independence is mentioned in the Bangalore Principles of Judicial Conduct in 2002. A judge shall exercise the judicial function independently on the basis of the judge’s assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.[4]It is recommended clearly that judge must be free from social influence, the particular parties to a dispute, which a judge has to adjudicate[5], influence by the executive and legislative branches of government, and from other judicial colleagues[6].
A little bit different from the access to independence of judge of the two international documents above, in the book “Judicial Independence – The contemporary debate” by Shimon Shetreet and Jules Deschênes, independence of judge is categorized into individual independence and substantive independence.
Independence means both personal independence and substantive independence. Personal independence of judges means that they enjoy such terms of service that render them free from executive control that could be exercised through removal, suspension, non consensual transfer from locality or one office to another, salary cuts or administrative retirement…The substantive independence of judges means that in the discharge of official functions, the judge is subject to no one and nothing but the law and his conscience.[7]
Under this division of independence of judge, influences from executive administration are emphasized while the fact that independence of judges is threatened by various external interference not the executive control only. Substantive independence of judge, actually, should be understood the impartiality of judges which will be mentioned in the next part.
Despite of the difference of words, all the understanding about independence of judges presented has the same nature showing from which and who judges should be free. The interference on judge’s independence, generally, can be divided into two resources: internal and external forces. External forces means the interference outside of the judicial system such as the social and economic influence, political parties, the press, litigants or any other forces outside of the judiciary itself that can encroach on the autonomy of the individual judge[8]…Internal forces means the influences inside the judicial system such as those from the other judges or superiors. “Independence” means not be influenced, impacted by anyone or anything, and independent person is the one carrying out his business on his own without any interference or affection. Therefore, whatever the interference, internal or external forces, duty of judges is making decision in accordance with the facts and laws.
In short, independence of judges can be defined briefly that judges must be free from the undue influences causing negative pressures upon their judgments from anyone, any institution, or any impact else inside or outside the judiciary system.
It also should be alleged that independence does not completely prevent judges from using positive external information in settling the cases, for example, judges may share the facts of the cases and discuss specific relevant legal issues with colleagues, including senior judges, but this consultation process must be regarded as advisory and never as authoritarian instruction.[9]Judges always suffer a lot of pressures in conducting their judicial function because there are so many interference and manifold resources of information relating to the cases. It is really a challenge for judge to secure his independence and consider the useful information supporting for the making just decision legally. Consistency and firm professional skills are unnecessary elements helping judges to choose the right way.
Respect independence of judges is responsibility of any institution and anybody. Being free from all of interference is duty and professional ethnic of judges; however, without the respect from the others, it is so difficult for judges to keep themselves independent in order to protect justice. Therefore, co-operation of the other institutions, community, and any external factors having potential influence on judge’s independence is very essential to make judges more independent.
2.1.1Independence and impartiality of judges
It is the fact that the term “independence” and “impartiality” is often mentioned together. Without careful studying, it is easy to confuse the two concepts and equate independence to impartiality. Impartiality is not less important than independence since it is a compulsory requirement of a judgment. The independent status accorded to a judge carries the assumption that the judge is impartial. Without the impartiality, independence of judge would be a disaster for the parties involved in the case and destroy the rule of law.