On December 14, 2020, the Supreme People’s Court in collaboration with the European Union (EU) and the UN Development Program (UNDP) organized a consultation workshop on the draft evaluation report five years of implementing the 2014 Law on Organization of the People’s Courts.
According to Article 74 of the current law, the first term of the judge is five years; In case of reappointment or reappointment to another judge rank, the next term of office is 10 years.
The draft proposed amendment towards a lifelong appointment to create conditions for judges to improve experience and trial skills.
Lawyer Dang Dinh Manh stated his views through the Facebook messenger application with RFA on this:
“I strongly agree with the proposal to appoint judges for life as one of the judicial reform measures in Vietnam, towards ensuring the independence of judges.
However, it is still to be understood that it is not enough within this scope, but synchronous reform measures must be taken.
These include: Abolishing the illegal mechanisms that are deeply interfering with the judges’ decisions such as the direction of the Internal Affairs Committee, the party agency, and the review meeting; Ensure that material treatment is worthy so that the judge no longer preoccupies the concern with rice, clothes, rice, money that dominates their lives, dominates their judicial decisions; and forbidden to join political parties.
This helps judges make objective decisions, only obey the law, not be affected, and governed by political party interests.”
At the seminar, Deputy Director of the Legal Department, Supreme People’s Court Ngo Van Nhan agreed with the proposal to appoint a lifelong judge, but first of all, it applied to the judges of the Supreme People’s Court because they are approved by the National Assembly and appointed by the state president.
Prof. Dr. Le Hong Hanh, former director of the Institute of Legal Science under the Ministry of Justice also said that a lifelong appointment should be made for judges of the Supreme People’s Court and senior judges.
Hanh explained that the US Constitution has proposed life-long the appointment of judges since its drafting because power lies in the executive office more than the legislature and the judiciary.
The executive agency has a lot of influence on the appointment of judges, so if appointed according to terms, the influence will be more.
Attorney Nguyen Hoang Duyen, who served 7 years as deputy dean of Lincoln Law School of San Jose, told RFA about the appointment of judges in the US:
“In the federal as well as state court system, when a judge is appointed, his or her term is a lifetime.
But because the 50 states have different ways, there are a few localities of states that also judges serve with limited terms. The judge also had to run for office again after his/her term ended.
When the appointed judge in federal court, from the lowest level, is District Court (district) to an even higher level called Appeal Court, to the Supreme Court, it is also a lifetime.
Its lifelong appointment of judges dates back to the founding of the nation. From the time of First President George Washington.
The reason for the concept of lifelong judges is because the US has three distinct separations of powers.
Courts are extremely independent of the executive and the legislature.
So if he appoints a judge who has to find another job after his/her term of office, sometimes it is his political future that will affect his judgment.”
Attorney Duyen explained that a judge who is appointed for life will not have to worry about the future work, there is no need to “love” anyone to seek personal after his term ends.
Their job is to protect their own honor by working according to the constitution and laws of the US.
However, appointing judges to work for life also has a drawback, that their views may no longer be appropriate and have outdated decisions in a rapidly changing society in all aspects.
Vietnamese judiciary has long been considered as an extended arm of the party when the legal system is divided into three agencies.
The first is the investigating agency that is under the Ministry of Public Security, which is under the management of the executive agency (called the executive, but in fact, Vietnam has no isolation powers).
If it is reasonable to say, the investigating agency and the court are two independent agencies.
The Chief Procurator of the Supreme People’s Procuracy has a high ranking in the judiciary.
Although in theory, the police are in a lower position than the Procuracy of the court, in practice, they are sometimes in permanent positions or as key party positions from local to intermediate levels.
Therefore, sometimes the police direct the Procuracy of the court.
That is the fact that lawyer Pham Cong Ut analyzed with RFA in November last year, when Mr. Le Minh Tri, Director of the Supreme People’s Procuracy, confirmed to Ho Chi Minh City voters that the law does not allow injustice, but also does not let criminals unpunished, everything must be done according to the law, if there is no evidence, it cannot be charged.
Responding to the domestic press, Le Hong Hanh himself, former director of the Institute of Legal Science under the Ministry of Justice, also confirmed that judges in Vietnam are not truly independent.
They must regularly seek guidance from the party committee, consult their superiors during the trial. If they do not consult the superior, the judgment is canceled, the judge will lose the emulation, affecting the reappointment.
The story of judicial independence is considered very necessary in one-party political institutions like Vietnam today. Because Article 4 of the Constitution puts the Communist Party “superpower” position.
Article 4 of the 1980 Constitution affirms that “The Communist Party of Vietnam is the only force leading the State and society.” Article 4 of Vietnam’s 1992 Constitution builds on the basis of Article 4 of the 1980 Constitution, leaving only the word “only” after the collapse of communism in Eastern Europe.
The Party’s leadership method has a great influence on the court and the Government also strongly dominates the court with the role of appointing and reappointing judges.
Lawyer Nguyen Hoang Duyen concluded: “If Vietnam wants to appoint a lifelong judge like the US, the first thing is that Vietnam must have a completely independent judiciary, executive and legislature.”
In principle, judges must be completely independent and judge on the basis of the law to ensure fairness. It is impossible to have an independent judiciary when the judges are still public servants, even party members.
The state-controlled media reported that a majority of respondents supported the appointment of lifelong judges
Mr. PHAM CONG HUNG, a former judge of the Supreme People’s Court told Law Online:
Lifetime appointment may have many advantages
“From my rich experience, I realize that if the appointment of judges for life, there will be many benefits to judicial activities and for the people.
First, the judge is a judicial title appointed by the President to perform judicial duties. After all, this is a profession, but it needs a stable, long-term job.
Each reappointment procedure takes time and effort. Practically few cases were reappointed on time at the end of a term, which often extended a few months.
Thus, during the time not yet reappointed, the judge at the end of his term is not allowed to participate in the trial and judgment resolution.
The accumulation of unsolved cases is not the fault of the judge or the involved party will affect the legitimate interests of the person.
On the other hand, don’t know what to call the judge waiting for the reappointment decision.
Second, there are currently many sanctions to handle judges violating judicial work or violating the law such as the Law on Organization of the People’s Court, Law on Civil Servants, Decision 120/2017 of the Chief Justice of the Supreme Court.
During the term in which the judge commits a violation, he/she can be punished for suspension or dismissed at any time. Therefore, it will eliminate the worry of the judge’s abuse without sanctions.
Third, the appointment of a lifelong judge will avoid the thought of “term safety“, fear of loss of heart … that affects the independence of trial.
Because the reappointment of judges or not is the opinion of the local committee.
Therefore, if the term is nearing the end of the term but the case is being resolved with the influence of the local party committee, it is also difficult for an independent trial.
Currently, for intermediate judges in administrative trials, summoning the defendant like the provincial chairperson to court in the administrative case is very difficult. If the defendant’s voice has weight for the reappointment of the judge, will the judge still be independent and impartial?”