Judicial independence - international trend and in Viet Nam
Judicial independence (including independence of judges) is a core element written in constitutions and laws of many countries in the world. Constitutions of several countries stipulates directly that courts or the judiciary are independent of external interference. Article 104 of the 2003 Constitution of Italy regulates: “The judiciary constitutes an autonomous and independent branch of government not subject to any other”; the 2002 Constitution of Algeria stipulates: “The judicial power is independent. It is exercised within the framework of the law” (Article 138); The 2005 Constitution of the Republic of France states: “The President of the Republic shall be the guarantor of the independence of the Judicial Authority” (Article 64). (1)
As far as courts’ judges are concerned, constitutions of many countries stipulate independence more concretely. The 1946 constitution of Japan stated: “All judges shall be independent in the exercise of their conscience and shall be bound only by this Constitution and the laws” (Article 76); Section 249 of the 1997 Constitution of Thailand stipulates: “Judges are independent in the trial and adjudication of cases in accordance with the Constitution and the law”; The 1998 Constitution of Fiji states: “The judges of the State are independent of the legislative and executive branches of government” (Section 118). (2)
The 1946, 1959, 1980, 1992 and the 2001 revised Constitutions of Viet Nam also stipulated judicial independence in that direction. Item 2, Article 103 of the 2013 Constitution stipulates more clearly than the previous Constitutions on the independence of judges: “The Judges and People's Assessors are independent and shall obey only the law. Agencies, organizations or individuals are prohibited from interfering in a trial by Judges and People's Assessors.” The fact that the People's Assessors are included in Viet Nam’s Constitution bespeaks the people’s representation and authority in trials and in the exercise of judicial power.
Judicial independence is not only independence of institution, and court organization but also independence of individual judges. Judicial independence is closely associated with guarantee of judge’s independence. To do so, many countries issue stringent stipulations on judges’ appointments, term of office; discipline or dismissal; age of retirement; finance for courts and salaries of judges, among others, to guarantee that judges are independent, impartial, unbiased, prompted by the nature of incidences and by laws; not subject to any restrictions, interference, influence, impacts or enticement, direct or indirect threats by any other people for any reasons.
Guaranteeing factors of juducial independence in Viet Nam
Resolution 49-NQ/TW dated 2 June 2005 of the Politburo of the Communist Party of Viet Nam on judicial reform by 2020 points out: “Expanding court jurisdiction concerning administrative complaints. Renovating administrative procedures within judicial bodies to provide favorable conditions for the people to access justice and ensure equality between citizens and authorities before the courts.” For people’s courts to correctly exercise judicial power stipulated by the Constitution, people’s courts should not only use laws to judge violators of laws but also become a tool for people to protect their legitimate interests against authorities’ violations. To fulfill this task, people’s courts - agencies exercise judicial power, should be independent in their positions of arbitration and judgment in disputes between people and authorities which are brought to courts. To ensure courts’ independence, Resolution 49-NQ/TW of the Politburo also states clearly: “Organizing the court system in such a way that the courts will be jurisdiction-based, rather than the existing geographic affiliation.”
Implementing Resolution 49-NQ/TW of the Politburo and new contents of the 2013 Constitution on issues relating to people’s courts, the Supreme People’s Court is finalizing the Draft Law on Organization of People’s Courts (revised) which will succeed contents of previous laws including revision and supplements to make it in line with the context of the country, guarantee judicial independence and courts’ independence so that they can fulfill their tasks of protecting justice, human rights, citizen rights, socialism, rights and legitimate interests of organizations, individuals and the Socialist Viet Nam.
Nevertheless, to reach unanimity of awareness among the Party, people and society on judicial independence and courts’ independence, it is necessary to study, and analyze essential factors which guarantee judicial independence and courts’ independence, and on that basis, to build institutions and appropriate regulations to create favorable conditions for courts’ work. Guaranteeing factors for the independence of the judiciary can be cited as following:
First, correct awareness on courts - agencies exercise judicial powers to protect justice
To ensure courts’ independence and judicial independence, first and foremost, it is necessary to change understanding of courts. Courts are the sole bodies on behalf of the State in jurisdiction to protect justice, human rights, rights and legitimate interests of organizations, individuals and exercise national judicial power. Only by having correct understanding of courts can we adopt correct points of view on building institutions, mechanism of operation, structure, infrastructure, incentives, finance, retirement age, term of office and salaries of judges to enable courts fulfill their roles as jurisdictional bodies of the Socialist Republic of Viet Nam which exercise judicial power in the socialist rule-of-law State as stipulated by law.
Second, capacity, ethics and enhanced responsibility of judges and People's Assessors
Judges and People’s Assessors exercise their authority stipulated by the Constitution and laws, thus they should be independent. Guaranteeing courts’ independence is guaranteeing the independence of judges and People’s Assessors which is not only simply during trial process but goes beyond that to mechanism, policies, and legislative framework.
The Constitution and laws must include transparent, complete and concrete stipulations on judges’ (and also People’s Assessors’) independence in jurisdiction. Appointments of judges should be done in a fair and accurate manner to select well-trained, fostered, qualified, competent, ethical and experienced judges who show their will and determination to protect justice, exercise the judiciary and independence in jurisdiction. However, mechanisms are needed to hold judges responsible for their judgments, for them to be independent, fair, protective of justice, correctly exercise the judiciary. Interference in jurisdiction is prohibited (it is necessary to put in place legal corridor for administrative settlement and hold judges, assessors, organizations and individuals criminally liable for their of interference in jurisdiction).
Third, judges’ appointments, movement, discipline and award
The appointments, removals from office, dismissals, movement, discipline and award of judges should be clearly stipulated by the Constitution and laws in alignment with a strict process without any intervention from any individuals. For example, the appointments of judges of the Supreme People’s Court should be ratified by the National Assembly; the appointments of other judges should be made through the National Council for Selection and Oversight of Judges. After that the Chief Judge will submit to the State President for decisions and appointments.
Judges’ discipline and dismissals will greatly affect courts’ independence. If the process of discipline is correctly conducted, it will ensure judicial righteousness and independence. However, if not, judicial independence will be affected. To maintain objective and unbiased law application, judges should not be affected by the possibility of arbitrary dismissals or movement. Thus, it is necessary to put in place stringent, concrete and detail ethical standards and regulations on which behaviors judges need or should avoid. These regulations will be the sole basis for discipline of judges and the discipline should be considered in a transparent and independent manner.
Fourth, judges’ tenure should be secure
The tenures of judges also affect judicial independence. When their tenures are long enough, they will not too worry about their reappointments at the end of the terms, and can give judgments without concern of their individuals’ interests and jobs.
Long tenures of judges have the following superiorities: First, they can keep their minds on the job without concern of their reappointments in the following terms. They are more firm and independent in protecting justice. Second, given more laws are promulgated, disputes are more complicated, judges should acquire more knowledge and experience, sustainable tenures will give them more chance to accumulate knowledge and experiences, improve their professional competence and enhance their independence.
In many countries, to ensure legality of judicial independence, laws stipulate life-long tenure of judges (namely in Argentina, Estonia, Great Britain, the United States, Canada, France and many other East and Central European countries). Life-long tenure is considered to be a strong modality to guarantee the independence of individual judges. To prevent undesired implications, there should be a careful and transparent process of selection, appointment, and control of judges’ accountability.
Fifth, ensure judges’ salary, age of retirement and job security
Besides maintaining secure tenure, there should be also regulations on a special mechanism on salary and incentive for judges as their work is specialized.
A mechanism of salary which guarantees the livelihood of judges and their families and their jobs will help them focus on their work, maintain ethics, protect justice, enhance their independence, avoid being manipulated and material seduction by power, forces, impacts and other external negative influences on their judgments.
Age of retirement and mechanism for job security should also be taken into account. Because well-qualified and experienced judges often have long seniority. They are “mature” in their work at the age of retirement and often subtle and accurate in their judgments and more careful. Thus, their age of retirement can be higher than other administrative public employees. On the other hand, as their judgments often affect interests of organizations, individuals, and as their decisions may take human, their job is a dangerous one which needs special protection to make them feel safe and secure to do their jobs to protect justice and exercise judicial power.
Sixth, judicial administrative management and ensured funding for courts
Administrative management of courts has close relationship with judicial independence because it affects daily work of judges. To ensure better judicial independence, the current trend is that many countries have extended the role of courts to take up their administrative management and resources, separating these from executive body.
Institutionalizing the viewpoint of Resolution 08-NQ/TW dated 2 January 2002 of the Politburo on some important and key tasks of the judiciary in the coming time: “The Supreme People’s Court manages local courts in organization to link professional mornitoring and guidance with assessment, placement and use of staff,” Artile 17 of the 2002 Law on Court Organization stipulates: “The Supreme People’s Court manages local courts in organization in close coordination with the People’s Councils.” The Draft Law on Organization of People’s Courts (revised) states: “The Supreme People’s Court manages local courts in organization.” This is in line with the above-mentioned viewpoint and conforms to the spirit of judicial reform, as the court system is organized in such a way that they will be jurisdiction-based, rather than the existing geographic affiliation. However, to ensure the oversight of elected bodies the Constitution still stipulates that representatives of People’s Councils have the right to question chief judges of People’s Courts.
Experiences show that over the past 12 years of implementation of Article 17 of the 2002 Law on Organization of People’s Courts, the court system under the management of the Supreme People’s Court has been gradually developed in terms of structure and staff number. Judges selected and recruited according to standards to fill correct posts. The quality of judges, cadres and staff of courts, infrastructure, conditions and facilities of courts have been improved. Positive changes in settlement and adjudication of cases have taken place, minimizing seriously wrong adjudication. On the other hand, in Viet Nam, organization and cadre work come under the direct management and guidance of competent Party Committees as stipulated in the Party Statute and other documents of the Party Central Committee and Politburo; all agencies and organizations of the political system in whatever aspects should abide by this principle. This is why, the Supreme People’s Court’s management of people’s courts in terms of organization does not infringe upon courts’ independence but ensures linkage between performance assessment with planning, training and placement of cadres; and is in line with Article 105 of the 2013 Constitution which stipulates that the Chief Judge of the Supreme People’s Court is responsible before the National Assembly; during the adjournment of the National Assembly, he/she is responsible before the Standing Committee of the National Assembly and the State President.
The administrative agency of the judiciary is identified as the assisting agency. In Viet Nam, the judicial administrative agency of people’s courts should be independent of the organizational system of courts at trial levels. The tasks of the judicial administrative agencies of people’s courts are to ensure budget, infrastructure, facilities and other conditions for trials. Those who are working in the judicial administrative agencies of people’s courts should not be appointed to the posts of judges or other judicial posts and vice versa; they are prohibited to intervene and influence trials of people’s courts at all levels.
Budget for the system of courts in general and for judges (salary and other preferential policies) in particular is one of the indirect factors which can influence judicial independence. According to the Draft Law on Organization of People’s Courts (revised), “After reaching agreement with the Supreme People’s Court, the Government submits budgets of people’s courts to the National Assembly for approval. In case the Government and the Supreme People’s Court can not reach agreement, the Chief Judge of the Supreme People’s Court will request the National Assembly to consider and decide.” The Supreme People’s Court needs to have mechanism of supervision to ensure equal and rational budget allocation and correct use of fund in the court system. The budget is allocated based on requests from local courts, their needs and tasks and should be done in a transparent manner. The Chief Judge of the Supreme People’s Court considers and decides the allocation. Besides, to ensure correct use of resources, supervision such as audit, inspection and control should be conducted. The judicial administrative agency should not take part in this process.
(1), (2) Comparative Constitutions Project (CCP). See data of CCP in http://www. Constitutionmaking.org/reports.html