!! Rethinking The Role of Judicial Independence in Socialist-Transforming East Asia

RETHINKING THE ROLE OF JUDICIAL INDEPENDENCE IN SOCIALIST-TRANSFORMING EAST ASIA JOHN GILLESPIE*
Abstract This article argues that judicial independence is a poor indicator of the capacity of courts effectively to resolve commercial disputes. Judicial power is a more accurate measure because it assesses whether courts have sufficient jurisdiction, discretionary authority and enforcement powers to make decisions over socially meaningful commercial problems. In fact, judicial independence may reduce the power of newly emerging commercial courts in socialist-transforming Asia, which need politics to protect them from interference by powerful governments and private investors. This article explores the trade-offs between judicial power and political patronage by inquiring into the circumstances where patronage may slide into interference. It also investigates the conditions in which judges are most likely to acquire or arrogate discretionary powers to understand politics on their terms. Finally, this article analyses the highly polarized views in this region about what constitutes valid judicial determinations. The message for international agencies contemplating judicial reforms is that reducing political influence and promoting law-based decisions will not uniformly generate popular support and legitimacy for courts.
I. INTRODUCTION
During the past two decades, transplanting the rule of law has become a global industry.1 While the law and development movement in the 1960s and 1970s stressed legal education and research, the latest trend, which came out of the East Asian Financial Crisis in 1997, has emphasized the rule of law and direct implantation of western institutions models.2 As socialist-transforming
* Professor and Director of the Asia Pacific Business Regulation Group, Department of Business Law and Taxation, Faculty of Business and Economics, Monash University, Melbourne, Australia. The author gratefully acknowledges the financial support provided by the Australian Research Council and the generous assistance of numerous Vietnamese judges, State officials and lawyers. 1 B Garth, Rethinking the Processes and Criteria for Success in RV Van Puymbroeck (ed), Comprehensive Legal and Judicial Development (The World Bank, Washington, DC, 2001) 1128; D Kennedy, The Rule of Law Political Choices, and Development Common Sense in D Trubek and A Santos (eds), The New Law and Economic Development: A Critical Appraisal (CUP, Cambridge, 2006) 11050. 2 See, eg, M Pomerleano The East Asia Crisis and Corporate Finances: The Untold Micro Story (1999) <http://ideas.repec.org/p/wbk/wbrwps/1990.html> (accessed 3 Oct 2005).
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countries in East Asia (principally China and Vietnam) restructure their legal systems to embrace international markets, the globalization of western legal institutions seems less difficult than ever before. Of these reforms, reinvigorating the court system is considered vital for promoting growth in the worlds most dynamic economic region.3 There is a potent western mythology that treats courts as the capital of laws empire.4 Courts are considered crucial to economic development not only because they resolve commercial disputes, but also because they allow citizens to bring actions to check bureaucratic and legislative power. The authority to perform these functions is thought to rest on the perception that courts are distanced from politics and other branches of government.5 Despite numerous studies that challenge the notion that only neutral and impersonal courts can uphold the law, the multilateral agencies that champion the transnational legal order (World Bank, Asian Development Bank, etc) regard judicial independence as a prerequisite for effective courts.6 The focus in this article is on judicial reform in socialist-transforming East Asia, particularly Vietnam.7 By any measure, courts in this region have been subjected to an extreme form of political control.8 Under socialism, party and government agencies regularly interfered with court decisions. But this was not aberrational behaviour, because socialist theory does not recognize the separation of powers doctrine and judicial independence. Compounding their lowly status, courts were poorly funded, lacked well-trained and experienced judges, and struggled against systemic corruption.9 There is general agreement among international donor agencies that countries in this region need courts that can resolve commercial cases fairly and efficiently. Judicial reform projects stress the need to build institutional capacity and increase judicial independence.10 However, the history of court reform
3 See J Anderson et al, Judicial Systems in Transition Economies: Assessing the Past and Looking to the Future (World Bank, Washington, DC, 2005) xixiii; contra D Clarke, Economic Development and the Rights Hypothesis: The China Problem (2003) 51 AJCL 89, 967. 4 See R Dworkin, Laws Empire (Harvard University Press, Cambridge, MA, 1986) 1214. Others argue that courts deliver economically efficient solutions. 5 See M Shapiro, Courts: A Comparative and Political Analysis (University of Chicago Press, Chicago, 1981) 325. Also see M Kammen, A Machine that Would Go of Itself: The Constitution in American Culture (Transaction Publishers, Piscataway, 1986) 31. 6 See A Santos, The World Banks Uses of the Rule of Law Promise in Economic Development in D Trubek and A Santos (eds), The New Law and Development: A Critical Appraisal (CUP, Cambridge, 2006) 27786). 7 Although there are many social and economic differences, China and Vietnam share many similar problems stemming from their adoption of a Soviet-inspired judicial system. Analogous issues have also arisen in court reforms in Mongolia, Laos and Cambodia. 8 See Z Qianfan, The Peoples Court in Transition: The Prospects of the Chinese Judicial Reform (2003) 12 J of Contemporary China 69, 76; P Nicholson, Judicial Independence and the Rule of Law: The Vietnam Court Experience (2001) 3 Australian J of Asian L 37, 3844. 9 See R Peerenboom, Judicial Accountability and Judicial Independence: An Empirical Study of Individual Case Supervision in the Peoples Republic of China (2006) 55 The China J 6792. 10 In 2003 there were 24 foreign-sponsored judicial reform projects in East Asia promoting judicial independence. See Asian Development Bank, Law and Policy Reform Bulletin (Asian
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suggests that independence from politics is not necessarily the most effective way to foster robust and effective courts.11 Judgments create losers. Attacks on courts are inevitable, especially during their vulnerable inception period. Since judges lack the purse and the sword to defend themselves, to some extent courts must rely on politics to function effectively. Politics thus threatens judicial independence, but it is also vital for the protection of embryonic courts. This conundrum raises the central question considered in this article: is judicial independence a useful measure of judicial effectiveness? Vietnam has been selected for study because the complex interplay between politics and judicial power is still fresh in the minds of judges and lawyers. Economic courts, which form the focus of this study, were recently established in 1994. Comparisons with judicial reforms in China are made where they shed light on the pace and depth of judicial reforms in Vietnam. After briefly discussing judicial reform projects in part II, the article in part III proposes using judicial power to evaluate the effectiveness of court reforms in Vietnam. Parts IVVI then use a series of cases studies to assess the jurisdictional, discretionary and authoritative power accumulated by economic courts. The discussion then investigates the potential for judges to develop a coherent system of judicial reasoning that checks or mediates political interference. The article concludes that this is most likely to happen in the commercial arena where judicial power does not directly impinge upon party power.
II. TRANSPLANTING JUDICIAL INDEPENDENCE
Most historians agree that Montesquieu overstated the role of judicial independence in securing liberty in England. Few would claim that the separation of powers was ever a central feature of 18th-century English constitutional law, yet disciples of Montesquieu privileged this principle in the US Constitution.12 The US constitutional architecture aimed to create checks and balances to prevent the accumulation of power that might weaken the review powers of the courts. Of the three main objectives of the US Constitution representative democracy, separation of powers and judicial review over legislationtwo were bound up with judicial independence.13 Although the
Development Bank, Manila, 2003), <http://www.adb.org/Documents/Periodicals/Law_Bulletin/ bulletin03.pdf> (accessed 30 June 2006). See, eg, LT Dung, Judicial Independence in Transitional Countries (2003) Working Paper, UNDP Governance Centre, Oslo; Legal Vice President, Legal and Judicial Reforms: Strategic Directions (World Bank, Washington DC, 2003) 2535. Also see P Hack, Introduction: Judicial Integrity in Andras Sajo (ed), Judicial Integrity, (Martinus Nijhoff, Leiden, 2004) 18. 11 See B Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy (1998) 73 New York University L Rev 333, 3945. 12 B Tamanaha, On the Rule of Law: History, Politics, Theory (CUP, Cambridge, 2004) 524; JN Shklar, Political Theory and the Rule of Law in AC Hutchinson and P Monahan (eds), The Rule of Law: Ideal or Ideology (Carswell, Toronto, 1987) 5. 13 See L Claus, Constitutional Guarantees of the Judiciary: Jurisdiction, Tenure and Beyond
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character of independence differs among common and civil law countries, most constitutions stress the need for judicial independence. In fact the doctrine is central to most rule-of-law theories.14 That judicial independence is entrenched in Western constitutional theory does not explain why it has become a key component in judicial reform programmes in East Asia. After all, law and development theorists have for decades cautioned that Western legal institutions, including judicial independence, are historically constructed and do not necessarily promote economic benefits when transferred across political and cultural borders.15 To some extent the ascendancy of US constitutional thinking in legal reform projects in socialist-transforming East Asia mirrors a broader hegemony propelled by US political, economic and military supremacy.16 Douglass North provides much of the theoretical inspiration for the most recent wave of law and development transplants.17 He reasoned from comparative historical research that impersonal exchanges with third-party enforcement [through effective judicial systems] has been the crucial underpinning of successful modern economies involved in the complex contacting necessary for modern economic growth.18 As a corrective, he urged international agencies to refashion commercial courts in the developing world into the neutral Western mould.19 Many foreign-sponsored law reform projects in socialisttransforming East Asia have adopted Norths thesis and are not only strengthening the capacity of courts, but also supporting judicial independence.20 It is difficult to recognize Vietnam in western constitutional prescriptions for judicial independence. As we shall see, judges have limited tenure and are selected through political processes. Politically sensitive judgments are directed by the party. By any measure courts are not independent from politics.
(2006) 54 AJCL 459, 47683; G Dietze, The Federalist: A Classic on Federalism and Free Government (The Johns Hopkins Press, Baltimore, 1965) 41102, 2556. 14 See generally J Raz, The Rule of Law and Its Virtue in Joseph Raz (ed), The Authority of Law (Clarendon Press, Oxford, 1979); R Summers A Formal Theory of Rule of Law (1993) 6 Ratio Juris 12742. 15 See D Trubek and M Galanter, Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States [1974] Wisconsin L Rev 1062, 10803; see also K Pistor and P Wellons, The Role of Law and Legal Institutions in Asian Economic Development, 19601995 (Asian Development Bank, Manila, 1999) 21844. 16 See generally U Mattei, A Theory of Imperial Law: A Study on US Hegemony and the Latin Resistance (2003) 3 Global Jurist Frontier <http://www.bepress.com/gj/frontiers>. 17 See D North, Institutions, Institutional Change and Economic Performance (CUP, Cambridge, 1990) 11821. See also E Jensen, The Rule of Law and Judicial Reform: The Political Economy of Diverse Institutional Patterns and Reformers Responses in E Jensen and T Heller (eds), Beyond Common Knowledge (Stanford University Press, Stanford, 2003) 3459. 18 North, ibid 35. 19 See CW Gray and WW Jarosz, Law and the Regulation of Foreign Direct Investment: The Experience from Central and Eastern Europe (1995) 33 Columbia J of Transnational L 1. 20 See P Bergling, Rule of Law on the International Agenda (Intersentia, Antwerpen and Oxford, 2006) 8491; and Asian Development Bank, Law and Policy Reform Bulletin (Asian Development Bank, Manila, 2003) <http://www.adb.org/Documents/Periodicals/Law_Bulletin/ bulletin03.pdf> (accessed 30 June 2006).
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However, this critique only makes the uninformative observation that courts in Vietnam differ from western constitutional settings. It does not explain whether judges possess the power to resolve meaningfully commercial disputes or assess their transformative capacity to resist external political and economic pressure. A conceptual framework is needed in which to evaluate the capacity of commercial courts in Vietnam to make socially and economically meaningful decisions.
III. JUDICIAL POWER
This article advances the thesis that judicial independence is not a reliable measure of judicial effectiveness. Judicial power more accurately predicts whether courts are effective and can make authoritative and socially meaningful decisions. Judicial power is not predicated on judicial independence; courts that lack judicial independence can still be powerful. The case for promoting judicial independence to secure civil and democratic rights is not questioned; regrettably many human rights abuses are still committed by States.21 This discussion focuses instead on the interplay between judicial independence and judicial power in developing effective commercial courts. This article assesses judicial power by examining its three commonly accepted components.22 First, courts must have jurisdiction over matters of commercial controversy. Although they are related, jurisdictional power and judicial independence are not mutually inclusive. For example, courts in some soft-authoritarian regimes, such as Singapore, are independent from the executive, but they lack jurisdictional power to consider matters that genuinely constrain State power,23 such as the constitutionality of State action. Singaporean courts are independent but not jurisdictionally powerful in constitutional matters. Secondly, courts need discretionary powers to make meaningful decisions.24 Judicial independence has a complex interrelationship with discretionary power. As conventionally conceived, independence is assessed by reference to the structural mechanisms that protect judges from internal and
21 The Office of the High Commissioner for Human Rights promotes judicial independence as a mechanism for citizens to check the power of the State. See Basic Principles on the Independence of the Judiciary, adopted by the Seven the United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan 26 Aug6 Sept 1985; indorsed by the General Assembly Resolutions 40/32 of 29 Nov 1985 and 40/146 of 13 Dec 1986. <http://193.194.138.190/html/menue3/b/h_comp50.htm>. 22 See P Solomon, Courts in Russia: Independence, Power and Accountability in Andras Sajo (n 10) 22630. 23 See L Thio, Rule of Law in Singapore in Randall Peerenboom (ed), Asia Discourses of Rule of Law: Theories and Implementation of Rule of Law in Twelve Asian Countries, France and the US (Routledge, London, 2004) 18891. 24 See generally K Hawkins, The Use of Discretion: Perspectives from Law and Social Science in Keith Hawkins (ed), The Use of Discretion (OUP, Oxford, 1992) 11.
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external pressures. According to the International Bar Association, judicial independence requires financial and organizational autonomy, security of tenure, adequate remuneration and clear rules governing appointment.25 Political interference, for example, can reduce discretionary power by discouraging judges from making certain choices. As we shall see, however, political power is a double-edged sword that can both reduce and expand the power of judges to make socially meaningful decisions. Discretionary power is also manifest where judges use legal reasoning to expand their sphere of influence over economic, social and political matters. The use of such power is revealed in judicial discourse. Unfortunately the few judgments published in Vietnam by the Supreme Court rarely give reasons for reaching decisions. Newspaper accounts of court actions are usually highly sensationalist and convey little understanding of courtroom discourse. For this reason analysis of judicial discretion relies on personal observations by the author and interviews with judges and lawyers. Thirdly, judicial power is also predicated on the authority of judges to make binding decisions. The successful enforcement of judgments is one way of assessing this power. Another method is to empirically measure social perceptions about judicial competence and integrity. Newly constituted courts that lack social prestige, such as those in Russia, struggle to have their decisions implemented.26 Judicial power is sometimes by reference to litigation rates. Even by regional standards commercial litigation in Vietnam is extremely low.27 Coming off a low base, cases have increased less than 35 per cent from 1999 to 2005.28 According to this measure Vietnamese courts lack power to resolve commercial disputes. Litigation rates, however, are not necessarily an accurate gauge of judicial power in Vietnam. McMillan and Woodruff have shown that most Vietnamese businesses prefer to use relational connections rather than courts to resolve
25 See full text of the International Bar Association standards <http://www.ibanet.org/ pdf/HRIMinimumStandards.pdf>. Vietnams Chief Justice, Pham Hung, signed the Beijing Statement of Principles of Judicial Independence in 1997. This non-binding statement does not discuss the sensitive question of judicial independence from political interference. <http://www.lawasia.asn.au/uploads/images/Beijing_Statement.pdf> (accessed 16 June 2007). 26 See P Kahn, The Russian Bailiffs Service and the Enforcement of Civil Judgments (2002) 18 Post-Soviet Affairs 14881. 27 In 2002 the annual inflow of cases filed in Vietnamese courts was approximately 200,000 or 0.00251 cases per person. During the same period there were approximately 7 million cases in China or 0.00583 cases per person, over double the rate in Vietnam. 28 Average annual increases in litigation are difficult to estimate because litigation rates have not increased steadily. For example, over 1280 new cases were filed in 1999, only 598 new cases were filed in 2002, but the litigation rate rose to 1,260 new cases in 2005. Civil litigation rates are rising much faster. There were approximately 25,000 cases in 1994 rising to over 50,000 in 2005. See Toa An Nhan Dan Toi Cao, Bao Cao Tong Ket Cong Tac Toa An Nam 2005 va Phuong Huong Nhiem Vu Cong Tac Toa An Nam 2006 (Report on 2005 and the plan for 2006 Supreme Peoples Court) (2005).
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commercial disputes.29 It is possible that as the economy grows and larger domestic firms transact more frequently with foreigners (especially those requiring formal contracts), legal rules may increasingly supplement the personal sentimental bonds that order commercial exchanges.30 This transformation may stimulate more demand for court-based dispute resolution. For example, over the last decade disputes among companies have become the fastest-growing form of litigation in China.31 So far economic development has not stimulated demand for litigation in Vietnam. The number of private firms employing more than 100 staff has increased tenfold during the last 10 years, but research suggests that demand for litigation has scarcely grown.32 Mainly for reasons concerning cost and enforcement, commercial arbitration has not become a credible alternative to court-based litigation in Vietnam. Some Vietnamese commentators blame low commercial litigation rates in Vietnam on poorly trained judges, underdeveloped laws and inefficient court administrators.33 Foreign commentators add to this list factors that limit judicial independence such as a lack of tenure for judges, poor salaries and party influence over court administration.34 The following discussion contends that structural reforms alone will not create powerful courts; in addition judges need jurisdictional, discretionary and authoritative powers.
IV. JURISDICTIONAL POWER
There are three levels of courts in Vietnam.35 The Supreme Peoples Court (Toa An Nhan Dan Toi Cao) is responsible for judicial work (cong tac xet xu), hearing appeals and supervising and reviewing decisions made by provincial courts. At the second level, provincial/city courts hear first instance and appellate cases. Over 600 district-level courts at the third level hear first instance cases. Judges are organized into chambers of courts that specialize in criminal, civil, economic, labour, military and administrative law. Because of the low number of cases, expertise in commercial matters is only developing in superior-level courts.
29 J McMillan and C Woodruff, Interfirm Relationships and Informal Credit in Vietnam (1999) 114 Quarterly J of Economics 1285. A recent survey confirms these findings. Leadco, Diagnostic Study on the Functioning of Existing Commercial Disputes Resolution System: Judicial and Non-Judicial (Supreme Peoples Court, June 2007) 635. 30 A survey recently showed that higher income groups (9 per cent) were almost twice as likely to have used the courts than low-income groups (5 per cent). See UNDP, Access to Justice: Survey from the Peoples Perspective (unpublished paper, Hanoi, 2004) 11. 31 See H Fu, Putting Chinas Judiciary into Perspective in Jensen and Heller (n 17) 199200. 32 Large private firms have increased from approximately 100 in 1994 to over 1,000 in 2004. See M Taussig, Private Sector Development Project, Asian Development Bank (unpublished report, Hanoi, March 2004). 33 See Interagency Steering Committee, Comprehensive Needs Assessment for the Development of Vietnams Legal System to the year 2010 (Ministry of Justice, 2002) 27; Leadco (n 29) 5869. 34 See B Quinn, Vietnams Continuing Legal Reform: Gaining Control over the Courts (2003) 4 Asian-Pacific L and Policy J 431. 35 Law on the Organization of Courts 2002; Leadco (n 29) 246.
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As in China, Vietnamese courts lack powers to enforce constitutional commands or review administrative acts for bias,36 but economic and civil courts possess broad jurisdictional powers over most types of commercial disputes.37 The division of jurisdictional powers among these courts follows the Soviet distinction between transactions for profit and necessity. Rather confusingly, economic courts have jurisdiction over corporations and contracts for profit, while civil courts have jurisdiction over other commercial transactions such as intellectual property. Together these courts have jurisdictional power to hear most socially important commercial cases but, as the next section argues, they lack the discretional power to expand creatively their jurisdictional powers.
V. DISCRETIONARY POWER
The second element of judicial power concerns the discretionary power to make significant decisions. This power is the most difficult to evaluate. Not only is it shaped by the political and legal structures that regulate courts, but also by the epistemological assumptions underlying judicial decision-making. A. Structural Constraints on Discretionary Power Most literature about Vietnamese courts focuses on the structural environment, such as State policy towards the courts, court administration and party management of judges.38 This discussion is necessary because it maps the regulatory context governing judicial discretionary powers. But, as we shall see, structural analysis is only suggestivea proxy. What really matters is whether judges are capable and willing to use interpretive reasoning to mediate political, economic and social imperatives. 1. State policy concerning judicial power Revolutionary leaders in Vietnam during the high-socialist period (19451986) rejected the need for powerful courts. They frequently invoked Lenins observation that under capitalism judicial powers are an exploitation machine for the bourgeoisie.39 During this time judges were expected to
36 Constitution 1992, Art 91; Ordinance on Administrative Procedures 2003. Also see M Dowdle, Of Parliaments, Pragmatism, and the Dynamics of Constitutional Development: The Curious Case of China (2002) 35 New York University J of Intl L and Politics 1, 2232. 37 Civil Procedure Code 2004, Arts 24 and 29. 38 See, eg, P Nicholson and NH Quang, The Vietnamese Judiciary: The Politics of Appointment and Promotion (2005) 14 Pacific Rim L and Policy J 1, 1422.; BJ Quinn, Legal Reform in the Context of Vietnam (2002) 15 Columbia J of Asian L 219, 2456. 39 For a comprehensive account about the pre-doi moi Vietnamese court system see P Nicholson, Borrowing Court Systems: The Experience of Socialist Vietnam (Martinus Nijhoff, Leiden, 2007) part 2.
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follow unquestionably party and statutory rulings and educate the people to observe the law.40 Courts were treated as instruments of State rule and Western notions of judicial independence were dismissed as bourgeois propaganda.41 Following doi moi (renovation) reforms in 1986, the party decided that fiat and moral rule could no longer govern a modern industrial society. Drawing from constitutional changes introduced in the Soviet Union under perestroika, the party in 1991 introduced the nha nuoc phap quyen (or law-based State) doctrine.42 It called for stable, authoritative and compulsory law; equality of economic sectors before the law; the use of law to constrain and supervise legal enforcement; and a judiciary capable of resolving private, commercial disputes. Unlike Soviet reforms, the party in Vietnam retained phap che xa hoi chu nghia (socialist legality), a doctrine that denied the very possibility of judicial independence from party leadership.43 The conceptual dualism set in motion by these opposing ideals is reflected in the 1992 Constitution, which requires judges to determine cases according to the law, protect the collective rights and the lives, property, freedom, honour and dignity of citizens, and, at the same time, preserve socialist legality, the State and the peoples right to mastery.44 Significantly for our discussion, courts in China have not allowed a similar State ideology to prevent them from gaining meaningful discretionary powers.45 2. The structural independence of the judiciary The notion of judicial independence from the State needs rethinking in China and Vietnams polity. In both countries there is a functional division, rather than a separation of powers among State organs.46 The concentration-ofpower (tap trung quyen luc) doctrine in Vietnam places the National Assembly at the apex of State power and invests it with powers, which are rarely used, to supervise court decisions.
40 Circular Letter No 556-TT issued by the Prime Minster on 24 Dec 1958. Also see PVan Bach, Le Nin Voi Van De Phap Che Xa Hoi Chu Nghia [Lenin and Socialist Legality] [1970] Tap San Tu Phap 916. 41 See generally Le Trung Ha, Chuyen Huong To Chuc Cua Cac Toa An Nhan Dan Dia Phuong De Dap Ung Voi Tinh Hinh va Nhiem Vu Moi [Changes in Local Court to Meet the Requirements of the New Conditions and Requirements] (1965 ) Tap San Tu Phap 1, 2. 42 See Author Unknown, Sua Doi Hien Phap Xay Dung Nha Nuoc Phap Quyen Viet Nam Day Manh Su Nghiep Doi Moi [Amending the Constitution, Establishing a law-based State and Promoting Doi Moi Achievements] (1992) 30, 323, 37. 43 See P Solomon, Gorbachevs Legal Revolution (1990) 17 Canadian Business L J 18494. For a discussion of socialist legality in Vietnam see P Van Bach (n 40) 916. 44 See Law on the Organization of Peoples Courts 1992, article 1; also see Vietnamese Constitution 1992, Art 126. 45 See R Peerenboom, Chinas Long March toward the Rule of Law (CUP, Cambridge, 2002) 3029. 46 See BN Son, Su Doc Lap Cua Toa Na Trong Nha Nuoc Phap Quyen [Independence of the Court and the Rule of Law] [2003] Tap Chi Nghien Cuu Lap 4350. A similar constitutional configuration exists in China see Perrenboom (n 45) 85.
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Party leadership (su lanh dao cua dang) over the courts is a more significant structural constraint to judicial independence.47 According to Politburo Resolution No 8 on Forthcoming Principal Judicial Tasks 2002: The party shall lead judicial agencies closely in political organization and personnel matters and ensure that the judicial activities really follow the viewpoints of the party and the law of the state. Like other public employees, judges are required to strictly abide by the partys lines and policies.48 As in China, recruitment and selection procedures also induce judges to follow party policies and directives.49 The nomenkultra system ensures that over 90 per cent of judges are party members. Judges are reappointed (every five years) according to selection criteria that stress loyalty to the motherland, good moral character, especially honesty and truthfulness, legal knowledge and support for socialist legality.50 Selection committees generally interpret these highly subjective criteria by reference to a judges compliance with party policies and professional competence in a field of law.51 Judges aspiring to high judicial positions are inculcated with the finer points of party ideology and policies at the Ho Chi Minh Political Academy. Party groups (dang bo and chi bo) interpret and disseminate central party rulings to judges. For example, the Hanoi Party Group interpreted Politburo Resolution No 8 2002 for the Hanoi Provincial Court.52 Judges and court officials attend regular party group meetings to discuss party resolutions pertaining to court work. Senior party cadres working inside the court system lead discussions by repeatedly sensitizing judges to the political and social implications of their decisions. Loyalty is assessed during monthly self-criticism (phe binh tu phe binh) meetings. In short, judges are not structurally independent from the party, which operates both inside and outside courts.
Constitution 1992, Art 4. Ordinance on Public Employees 1998, (as amended) Arts 1(4), 6(2). 49 These views are based on over 50 interviews with Vietnamese judges [Interviews with judges]: Dang Quang Phuong, Director, Institute for Judicial Science, Supreme Court, Hanoi Mar 1999, Sept 1999, Feb 2000, Mar 2002; Ngo Cuong, Vice Director, Institute of Judicial Science, Hanoi, Feb 2002, Mar 2004, Jan 2005; Nguyen Khac Cong, Judge Supreme Court, Hanoi, Oct 1997, Mar 1999, Oct 2002; Nguyen Van Dung, Judge, Economic Division, Supreme Court, July 1998; Ma 1999; Nguyen Nien Bich, Judge Supreme Peoples Court, Hanoi, Mar 2004; Nguyen Thi Loi, Deputy Chief Judge, Civil Division, Hanoi Peoples Court, Hanoi July 1998, Mar 1999, June 2003; Hoang Huu But, Vice Chief Justice, Hanoi Peoples Court, Sept 2002, Mar 2004; Chung Lam, Chief Judge, Hoan Kiem District Court, Mar 2004; Tran Thi Hai, Chief Judge, Civil Jurisdiction, Dong Da District Court, Hanoi, Sept 1999, Aug 2003. For details about China see S Liu, Beyond Global Convergence: Conflicts of Legitimacy in a Chinese Lower Court (2006) 31 Law and Social Inquiry 828. 50 Selection committees comprise deputies from peoples councils, government officials and senior judges. See Law on Organization of the Peoples Courts 2002, Arts 37, 40, 41. 51 According to Item II of Inter-circular No 05/TTLN of the Ministry of Justice and Supreme Peoples Court Providing Guidelines of the Ordinance on Peoples Judges and Assessors 1993, loyalty to motherland and firmly defending the socialist legality are partially based on political knowledge certificates (chung chi trinh do ly luan chinh tri) issued by national political institutes (hoc vien chinh tri quoc gia). 52 Toa An Nhan Dan Thanh Ha Noi, Bao Cao Ket Qua 4 Nam Thuc Hien Nghi Quyet So 08NG/TW Ngay 2.1.2002 [Report on the Results of Four Years Implementation of Resolution No 08-NG/TW Ngay 2 Jan 2002] (Hanoi, 3 Nov 2005).
47 48
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Almost a decade after judicial reforms began in China, Vietnam embarked on its first major reforms in 1992.53 Like China, reforms sought to reconfigure courts geared for a command economy to resolve rights-based disputes in the mixed-market economy. Attempts were made to centralize court administration by relocating powers to appoint judges from local government to the president of Vietnam. Programmes were introduced to professionalize the judiciary through tertiary education and specialized legal training courses. Reforms also sought to reduce government authority over local courts by giving superior courts greater powers to promote law-based decision-making throughout the court system.54 The second round of court reforms in 2002 aimed to concentrate further power over local courts into the hands of the Supreme Court.55 Administrative control over court budgets was transferred from local government authorities and the Ministry of Justice to the Supreme Peoples Court (SPC). Further strengthening judicial self-management, the chief justice rather than the president now appoints judges.56 Without central political support from the Politburo, the SPC would have been powerless to regain management powers from the Ministry of Justice and local government. Naturally the boundaries between party and State are never precise in Vietnam. The third round of reforms followed a wave of press articles during 2000 and 2001 denouncing false prosecutions, judicial corruption and the criminalizing of civil and economic cases.57 Responding to media criticism, the Politburo issued Resolution No 8 2002, which criticized aspects of judicial work (cong tac tu phap)58 and called for strong and stable judicial personnel and clearer organizational structures and responsibilities.59
53 For details about Chinese reforms see S Lubman, Bird in a Cage: Legal Reforms in China after Mao (Stanford University Press, Stanford, 1999) 25097. For discussions about judicial reform in Vietnam see Le Cam, Cai Cach He Thong Toa An Trong Giai Doan Xay Dung Nha Nuoc Phap Quyen Viet Nam [Reform the Court System to Build Up a Law Based State in Vietnam] [2002] Nghien Cuu Lap Phap 21; N M Cuong, Yeu Cau Cua Viec Xay Dung Nha Nuoc Phap Quyen Doi Voi Doi Moi To Chuc va Hoat Dong Cua Cac Co Quan Tu Phap [How to Reform Judicial Authorities to Build up a Law-Based-State] [2002] Nghien Cuu Lap Phap 30. 54 See Ba Tuan De Chanh An TANDTC Co Dieu Kien Bo Nhiem Tham Phan Duoc Xac Thuc Hon [Allowing the Chief Justice of the Supreme Peoples Court the Ability to Nominate Judges Will Be More Realistic] [19 Mar 2002] Phap Luat 2. 55 See Law on the Organization of Peoples Courts 2002, Arts 45, 46. 56 ibid Art 40. 57 For a discussion about the Nam Cam case and court scandals see Unknown Author, Vietnam Da Xuat Hien Toi Pham Co To Chuc o Trinh Do Cao [High-Level Organised Crime Makes Its Appearance in Vietnam] [15 June 2002] Vnexpress. 58 The term cong tac tu phap refers to all the agencies connected with courts, including the procuracy and police. 59 See V Chi Cong, Thay Gi Ve Cong Tac To Chuc va Quan Ly Can Bo Qua Vu An Truong Van Cam [What Can be Seen About Organizing and Managing Cadres Through the Truong Van Cam Affair] [2002] Tap Chi Cong San, <http://www.tapchicongsan.org.vn>.
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Perhaps the introduction of a hybrid inquisitorial adversarial system will prove to be the most significant steps towards judicial independence. It has been hailed by the party as a buoc dot pha (breakthrough) that will bring democracy to the courtroom.60 Yet in contrast to more far-reaching reforms in China, Vietnam has retained most elements of the Soviet-inspired inquisitorial system that gives judges powers to dominate courtroom discourse and oversee the production of evidence.61 Although the reforms fall well short of fully realized adversarial systems, as we shall see they have given lawyers more opportunities to compel judges to frame their decisions within legal parameters.62 To recap, politics both protects and constrains judicial power. Law reforms aim to defend judges from interference by government agencies, but they also preserve the partys prerogative powers to lead the courts. Structural analysis of this kind suffers from a major shortcoming. It does not tell us how judges actually decide cases, only what the external legal and political regulatory environment expects from them. To understand the potential for judges to use their discretionary power to make meaningful decisions it is necessary to examine judicial discourse.63 B. Judicial Narratives and Discretionary Power The artificial reason of law invoked by Sir Edward Coke in 1607 against the political interventions of the King sought to give judges and lawyers power over how moral, economic and political imperatives influenced courtroom discussions.64 Although it is not the complete story, political allies also played their part and the judges voice protected the court. The evolution of judicial reasoning and a professionalized system of law in England made it possible for judges to partially insulate themselves against clientelism, nepotism, hierarchical status and political cronyism. As Jiri Priban observed, the normaliPolitburo Resolution No 49 NQ/TW on the Strategy of Judicial Reform to 2020. See R Peerenboom, What We Have Learnt about Law and Development? Describing, Predicting, and Assessing Legal Reforms in China (2006) 27 Michigan J of Intl L 823, 8447. 62 See N Phu Son, Bo Luat To Tung Dan Su Can The Hien Thin Than Cai Cach Tu Phap [Civil Procedure Code Should Express the Spirit of Judicial Reform] [2004] Tap Chi Nghien Cuu Lap Phap 2431; Bach Quoc An, Nguyen Khanh Ngoc, Mot So Co Hoi va Thach Thuc Dat Ra Doi Voi He Thong Phap Luat va Tu Phap Nuoc Ta Trong Boi Canh Thuc Hien Hiep Dinh Thuong Mai Viet Nam Hoa Ky [Opportunities and Challenges for the Systems of Laws and Justice in Vietnam in the Context of Implementing the Bilateral Trade Agreement Between Vietnam and US: Some Legal Aspects of the BTA between Vietnam and US] [2002] Thong Tin Khoa Hoc Phap Ly 10237. 63 Discourse is taken to mean all forms of spoken interaction, formal and informal, and written texts of all kinds, especially political, economic, moral, cultural and legal modes of communication. J Potter and M Wetherell, Discourse and Social Psychology (Sage Publications, London, 1987) 7. 64 See C Hill, Intellectual Origins of the English Revolution Revisited (OUP, Oxford, 1997) 22830; J Ferejohn and P Pasquino, Rule of Democracy and Rule of Law in JM Maravall and A Przeworski (eds), Democracy and the Rule of Law (CUP, Cambridge, 2003) 244.
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sation function of legalist fictions helps to reduce the complexity of social reality and set up the structures and social communication framework of positive law.65 Aided by artificial judicial reasoning, law was well on the way to becoming an institutionalized presence shaped by increasingly autonomous courts. What is instructive for our purposes is that creative legal reasoning was used to mediate political interference long before formal constitutional settings safeguarded judicial independence. For centuries courts in equity have exercised broad discretionary powers of right and justice to interpret legislation. But in civil law jurisdictions like Vietnam, judges are relegated in the official discourse to the secondary function of passively and mechanically applying the law to resolve commercial cases.66 They are expected to assume that legislation is comprehensive, internally consistent and that for every social problem there is a governing rule. In brief, the law is supposed to have already judged and judges mechanically fit facts into the matrix of law. According to this official portrait, Vietnamese judges lack the discretionary power to manufacture legal fictions to mediate political interference. Judges in every legal system need discretion to reconcile the gap between legislative rhetoric and reality. Even in mature civil law systems, such as in France, statutes alone cannot possibility provide solutions to every problem.67 The problem is particularly acute in China and Vietnam, where commercial legislation is frequently contradictory and incomplete.68 The following discussion examines judicial discourse to ascertain how Vietnamese judges resolve the many hard commercial cases that are not directly covered by statute.69 It looks behind the official portrait to see whether judges have developed an interpretive tradition that gives them discretionary power to creatively apply law to new situations. It also searches for accountability mechanisms that have evolved to ensure that judges do not overreach themselves and project power beyond their constitutional and political mandate. 1. Party-mediated judicial discretion To begin this analysis we need to determine how much space party leadership gives judges to interpret creatively law. Courtroom discourse in Vietnam is poorly researched. But one issue is clear: judicial decision-making is not
65 J Priban, Legitimation Between the Noise of Politics and the Order of Law in J Priban and D Nelken (eds), Laws New Boundaries: The Consequences of Legal Autopoiesis (Ashgate, Aldershot, 2001) 107. Also see C Fried, The Artificial Reason of the Law or: What Lawyers Know? (1981) 60 Texas L Rev 3558. 66 Interviews with judges. 67 See J Merryman, The Civil Law Tradition (Stanford University Press, Stanford, 1969) 89. 68 See M Woo, Law and Discretion in the Contemporary Chinese Courts (1999) 8 Pacific Rim L & Policy J 581, 5836. 69 In a recent survey district court judges rated commercial cases as the most difficult they faced. UNDP, Report on Survey Needs of District Peoples Courts Nation Wide (2007) 23641.
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independent (doc lap) from party leadership (su lanh dao cua dang). Judges interviewed by the author understood judicial independence to mean freedom from party interference (su can thiep), but conceded the distinction between party leadership and interference is unclear.70 Moreover, there is uncertainty in the minds of some judges whether informal directives that specifically address particular cases constitute party leadership. Take, for example, the prosecution of traders in 2004 for circulating counterfeit VAT invoices.71 It was clear from the facts that the defendants violated an administrative provision that prevented the commercial sale of VAT invoices. The procuracy, however, failed to prove the more serious criminal charge that the defendants had fraudulently dealt with negotiable instruments.72 They faced the evidentiary problem that VAT invoices are not considered negotiable instruments under the Civil Code 1995, because they do not have an intrinsic negotiable value. According to the defence counsel, the party instructed the trial judge (Nguyen Khac Son) to use legal analogy (ap dung phap luat tuong tu) to overcome evidentiary deficiencies. Developed in the Soviet Union, this doctrine permits judges to criminalize (hinh su hoa) otherwise legal behaviour that seriously damages State interests.73 The defence counsel believes the party decided that the economic harm caused by the loss to State revenue was sufficiently serious to suspend legal reasoningthis form of deliberation would have acquitted the defendants. On appeal the Supreme Peoples Court in February 2005 upheld the provincial courts judgment. Lawyers report that in sensitive cases judges converse in twin narratives.74 Judges are careful to portray their decisions as passively and mechanically applying the lawa textual narrative. But where textual narratives do not produce desired outcomes, judges quietly turn to party policy narratives that permit creative law-making to preserve the State benefit. In the VAT case, for example, the presiding judge was instructed to use legal analogy to expand a criminal penalty well beyond its textual meaning in the Penal Code 1999. Party leadership is less direct and prescriptive for cases which are not politically sensitive. Instead it conveys broad principles that set the general political and moral tone for decision-making. Within these vague guidelines
Interviews with judges. Case No 57, First Instance Criminal Court, Thai Binh Provincial Peoples Court, 8 Mar 2004. Interview with the defence counsel, Hanoi, Mar 2005. 72 Criminal Code 1999, 181. 73 Art 16 of the repealed 1926 Soviet Criminal Code provided that if any socially dangerous act is not directly provided for by the present Code, the basis and limits of the responsibility for it shall be determined by application of those articles of the Code, which provide for crimes most similar in nature. Also see Dinh, Van Que, Phap Luat Thuc Tien va An Le [Legal Practice and Precedent] (Truth Publishing, Hanoi,1999) 1817. 74 See Interviews with lawyers from four Hanoi-based law firms Investconsult, Vilaf, Vision and Associates, N H Quang and Associates and Leadco, between March 2002 and April 2007 [Interviews with lawyers].
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judges have considerable discretion to determine the State benefit (loi ich cua nha nuoc). For example, in an action taken by a State-owned enterprise (SOE) in the Hanoi Economic Court in 2003, the judge concluded that the State benefit was preserved by allowing a State-owned company to recover unlawfully transferred foreign currency. Confiscating the money would have compromised the companys competitiveness against the private sector. In contrast, the procurator thought that the States benefit was served by confiscating and returning the money to State revenue. To summarize, in sensitive trials party leadership authorizes judges to create legal fictions to secure politically acceptable outcomes. More generally, however, party narratives convey few concrete guidelines to understand hortative party policies and the State benefit. As the next section shows, rather than creatively using legal reasoning to fill this regulatory vacuum, most judges turn to superior State and judicial bodies to resolve hard commercial cases. 2. Government directives to judges Like their counterparts in China, Vietnamese courts have for decades functioned essentially as local government offshoots.75 Judges rely on government officials to investigate litigants, gather evidence and in many cases determine liability. There is compelling evidence judges in both countries continue to rely on government officials for discretionary guidance in hard cases. Consider the action by New World Cong Ty against the Nghia Tan (Ward) Peoples Committee in Vietnam.76 A dispute arose in 2002 between Nghia Tan Peoples Committee in Hanoi and New World over a joint-venture agreement for an amusement park. The Peoples Committee agreed to provide land in return for a profit fixed at seven million dong per month (approximately US$430). The joint venture did not perform to expectations and after one year the Peoples Committee accepted a reduced profit share of one million dong per month. When the joint venture terminated, the Peoples Committee demanded payment for the profit forgone over the five-year term of the contract. In response New World petitioned the economic division of the Hanoi Provincial Court to declare the contract invalid. It argued that the Peoples Committee had waived its contractual right to the profit and the joint-venture agreement was thus void and unenforceable. In the alternative, it argued that the Peoples Committee was forbidden by the Ordinance on Economic Contracts 1989
75 In a recent survey district court judges admitted they routinely defer to the opinions given by local government bodies. See UNDP (n 69) 298300. Also see Z Qianfan, The Peoples Court in Transition: The Prospects of the Chinese Judicial Reform (2003) 12 J of Contemporary China 69101. 76 This case study is based on information provided in interviews with lawyers working for Leadco during March 2003 and July 2004.
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from entering economic contracts and lacked the authority under the Land Law 1993 to lease land. Hoang Huu But (the trial judge) based his judgment on a letter from the Cau Giay District Peoples Committee confirming that the ward-level Peoples Committee was authorized to enter the joint-venture agreement. He reasoned that once instructed to lease the land, the ward-level Peoples Committee was legally compelled to obey a higher level (tuan theo menh lenh cap tren). Rather than creatively interpreting the statutory law to protect the ward-level Peoples Committee, the judge used the letter from the district peoples committee to override central legislation. Lawyers believe this case is explained by local protectionism; that local officials pressured (suc ep) the judge to disregard legislation and find in favour of the State. The notion that State officials possess the expertise and knowledge required to assess liability is deeply embedded in judicial thinking. Take, for example, Nguyen Kim-Manhs action against Pham Loc (Director) and Hang Phim Truyen VN (Film Production Studio VN) for breach of copyright (ban quyen).77 He alleged the defendants had infringed his copyright in a novel entitled Hon Nhan Khong Gia Thu (literally Marriage without Registration) by changing key elements of the story during the adaptation of the novel into a film script. The protagonist in the novel was depicted as an ace fighter pilot, war hero and a complex man struggling against his moral imperfections. Among his many moral transgressions, the protagonist refused to recognize his illegitimate son. Glossing over these moral contradictions, the film script presented a one-dimensional war story depicting tinh yeu thuong mai (commercial love) relationships. Nguyen Thi Loi, the presiding judge in the Hanoi Peoples Court, was asked to determine whether the producers obligation to comply with censorship directions overruled the authors property rights under Article 751(e) of the Civil Code.78 Censors from the Ministry of Culture and Information requested script changes without specifying which elements of the story were unsuitable for public viewing. The author, Nguyen Kim-Manh, contended that the producers breached copyright by making unnecessary changes. The judge could not resolve the case from a textual reading of the Civil Code. But rather than creatively interpreting the Code, she called on officials from the Political Bureau of the Air Force and the Censorship Committee to determine liability. She acted like a bureaucratic clerk in ensuring that legal procedures were followed and the correct penalties were applied, but referred the substantive decisions to layers of approval within the party and State.
77 This case study is based on interviews with Nguyen Thi Loi, Deputy Chief Judge, Civil Division, Hanoi Peoples Court, Hanoi, Apr 1999 and Sept 1999, and the transcript of the first instance judgment Case No 41, 1619 Oct 1998. 78 Art 751(e) of the Civil Code gives authors rights to protect the integrity of their work and permit or not permit other persons to alter the content of the work.
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The deeply engrained deference shown by many judges to higher authorities (cap tren) allows government agencies to dominate courtroom discourse and inhibit the emergence of interpretive or hermeneutic narratives. This practice discourages judges from arrogating discretionary power to creatively apply law to new and novel situations. 3. Judicial interference in court decisions Higher-level courts are not generally considered a threat to judicial power, except when they erode judicial discretion by directing inferior court decisions outside the appeal process. Direction of this kind routinely takes place in China and Vietnam.79 Judicial committees (uy ban tham phan) comprising superior and inferior judges review most inferior court cases in Vietnam before decisions are announced.80 In a recent survey, 68 per cent of judges questioned admitted that in closed sessions they request case outcomes (thinh thi an) from senior judges.81 In principle majority decisions prevail, but in practice chief judges dictate the outcomes in hard cases. Although there is no legislative basis for the practice, lawyers interviewed believe this type of collegial decision-making is still widely practised as a means of inducing consistency and minimizing corruption. By encouraging a culture of first decide then try (quyet dinh truoc khi xet xu), collegial decision-making increases the accountability of inferior court judges at the expense of their discretionary power.82 Professional guidance (chi dao chuyen mon) by the Supreme Court constitutes another internal control over the emergence of hermeneutic narratives. The practice was borrowed from China in the 1950s to unify and stabilize the application of law by inferior court judges possessing little or no legal training.83 Professional guidance takes the form of individual rulings that are applicable to specific cases. It contrasts with common law precedents in not necessarily having a general application. Judges routinely seek professional guidance from higher authorities to avoid the appearance of interpreting the law in sensitive cases that involve foreigners, novel commercial disputes and claims against the party and State. Consider the proceedings in the Hanoi City Court taken by Hyosus Hong Kong Ltd against Vietnam Commercial Joint Stock Bank (issuing bank) for
See Peerenboom (n 9) 6792. Interviews with lawyers. Also see Sida Liu (n 49) 914. Even higher levels of procurators (94 per cent) and lawyers (89 per cent) believe it is a frequent practice. See UNDP (n 69) 2502. 82 B Ngoc Son, Su Doc Lap Cua Toa Na Trong Nha Nuoc Phap Quyen [Independence of the Court and the Rule of Law] [2003] Tap Chi Nghien Cuu Lap 4350. 83 Interviews Dang Quang Phuong (n 49). See generally D Oden, The Role of Courts and Judicial Style Under the Soviet Civil Code in D Barry, F Feldbrugge, and D Lasok (eds), Codification in the Communist World: Symposium in Memory of Zsolt Szirmai (19031973) (AW Sijthoff, Leiden, 1975) 31731.
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failing to honour an irrevocable letter of credit (LC).84 Lawyers acting for the complainant believed that the Vietnamese buyer, a large SOE owned by the Hanoi Peoples Committee, persuaded Hanoi provincial authorities to issue an official letter stating that the SOE and Hyosus Hong Kong Ltd were in dispute and instructing the issuing bank to dishonour the LC. According to the Uniform Commercial Credit Practice (UCCP) rules governing the contract of sale, the issuing bank was only entitled to dishonour the LC when a court found the seller guilty of fraud. Rather than hearing the case, the court immediately sought guidance from the Supreme Court Judicial Council (uy ban tham phan). The Judicial Council then sought an administrative ruling from the State Bank to determine whether State banks should honour the LCs. Rather than using secondary legal sources, such as international practice, legislative deliberations and academic commentary to inform its own hermeneutic discourse, the Judicial Council relied on a government agency to interpret the laws.85 Judicial Council Professional Guidance (chi dao chuyen mon) No 37/TKT on 18 May 1998 froze further proceedings in this and other LC cases.86 It made the narrow and technically incorrect argument that LCs are not economic contracts and as such are not justiciable by economic courts. Lawyers for the complainants speculated that professional guidance was used to protect the State benefit by shielding State-owned banks from foreign creditors. This case raises an important problem in Vietnam. Is discretionary power properly discharged by presiding judges or is justice better served by including higher courts, party and government officials in collective decisionmaking? An answer to this question depends on how much confidence is placed in the legal system to guide discretionary powers and in presiding judges to make legally and socially appropriate decisions. A danger with allowing judicial supervision to become too firmly entrenched is that it will compromise the long-term capacity for judges to develop discretionary power and make meaningful commercial decisions. 4. Moral and sentimental discourse in the courtroom According to official thinking, judges are expected to exclusively rely on party and textual narratives to uphold the law. But judges in China and Vietnam for
84 Uniform Commercial Credit Practice (UCCP) 500 rules developed by the International Chamber of Commerce in 1993 forbid issuing banks from dishonoring letters of credit once prescribed shipping documents have been received by purchasers. 85 The State Bank (Vietnams central bank) promulgated Decision No 711, 25 May 2001 and Decision No 1233, 26 Sept 2001, outlining the circumstances in which State-owned banks can issue deferred LCs. 86 For example, the Hyosung Corporation sued the Vietnam Commercial Joint Stock Bank in the Ho Chi Minh City Peoples Court in May 1998 for failing to honour an irrevocable LCs. See K Chi, Potential Quicksand [1998] Vietnam Economic News 1819.
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decades have found that law rarely produces socially acceptable outcomes. In order to generate social legitimacy judges in China and Vietnam (particularly in lower courts) have used non-legal narratives to paper over gaps, conflicts, and ambiguities in the statutory law. They prefer situationally responsive justice to a uniform rule of law. Informality and flexibility are important decision-making techniques for lower courts in China and Vietnam.87 Judges in Vietnam ground their discretion on reason and sentiment in carrying out the law (ly va tinh trong viec chap hanh phap luat)a practice that developed during the high-socialist period when law alone was not expected to resolve most cases.88 More a political slogan than a legal principle, this practice seeks outcomes from the facts without technically and rigidly applying the law. Judges generate legitimacy by conforming to local norms of justice, even when this involves bending or ignoring central legal rules.89 In cases observed by the author, judges encouraged litigants to argue their case using moral and sentimental language.90 In disputes over house ownership, for example, claimants invoked principles of fairness (cong bang) and reasonableness (hop ly). A war widow claimed she had a greater social need (nhu cau xa hoi) for a house than a farmer defending his ownership rights. A local government official invoked the sentiment of co long tot voi dan (good heartedness towards the people) to support his claim for possession of a house owned by another villager. A district court judge hearing a housing dispute evaluated evidence according to what was reasonable in the circumstances.91 It was reasonable, even constitutional, he decided for some clan elders to allow landless relatives to occupy a clan house. Local morality and sentiment in these cases displaced central legal doctrines and other secondary legal sources that supported a textual narrative. Sentiment also played a role in deciding an action by Artext Tang Long (a State-owned enterprise) against a private company in the Hanoi Provincial Court in 2003. Artext advanced a foreign-currency loan to the private company to fund a wig export business. When the enterprise failed, the private company reneged on repaying the loan, arguing that since the agreement violated State Bank regulations, it was unlawful and unenforceable.
87 See M Woo, Law and Discretion in the Contemporary Chinese Courts (1999) 8 Pacific Rim L and Policy J 581, 58692. 88 These comments are based on interviews with a Vietnamese sociologist who specialises in state-village relations. Interviews Hoang Ngoc Hien, Sociologist, Nguyen Du School of Creative Writing, Hanoi, 21 June 1998, Apr and Sept 1999, Aug 2000. 89 Interviews Tran Thi Hai, Chief Judge, Civil Jurisdiction, Dong Da District Court, Hanoi, Sept 1999, Aug 2000; Chung Lam, Chief Judge, Hoan Kiem District Court, Hanoi, Mar 2004. 90 The author observed five cases in the Vinh Phu Provincial Court in 1994 and three cases in Civil Division of the Hanoi Peoples Court in 1998 and four economic, civil and labour cases in the Hanoi City Court during March and April 2006. 91 The judge erroneously referred to the superseded 1980 Constitution which provide a State guarantee to provide housing. Tu Liem Peoples Court, Case No 52/DSST, 2 Oct 1995.
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Tuan Anh, the trial judge, ordered the private company to repay the loan in an out-of-court settlement. If the case had proceeded to trial, the director of Artext would have been charged with the serious criminal offence of causing losses to socialist property. Tuan Anh was persuaded by the moral argument that the director made one innocent mistake in his otherwise unblemished trading record. To avoid imposing a custodial sentence, he overlooked contractual rules that clearly showed the loan agreement was unlawful. In reaching his decision, Tuan Anh treated laws as situationally relevant guidelines rather than absolute, universal and immutable sources of authority. Situational validity (thoa dang) has a long history in Vietnam, as it first emerged in pre-colonial dispute resolution.92 It encourages judges to balance competing claims for redemptive justice against broader considerations derived from reality processes (qua trinh thuc tai). Judgments are valued for the skill shown in selectively applying a wide range of local and imported political, economic, moral and legal values to resolve social problems. Securing agreement from interested parties including the party and State is much more highly valued than consistently following codified norms and procedures. Superior court judges are less likely to use situational decision-making. For example, lawyers acting in the previously discussed clan house case, on appeal convinced the Hanoi Provincial Court to overturn the district court decision on the grounds that the Land Law 1993 did not recognize social obligations to relatives.93 Nevertheless, law-based narratives by no means dominate discourse in superior courts. In cases observed by the author, provincial court judges used political and moral arguments to resolve cases according to the social status of litigants. They pointedly extolled the war records and party and community affiliations of socially prominent litigants to pressure less wellconnected parties to settle. So far the discussion has shown that three narratives inform decisionmaking. Judges are generally careful to portray themselves as following textual narratives. Yet in deciding hard cases they turn to party policy and thao dang narratives for guidance. From a central legal perspective thao dang narratives appear to give judges considerable autonomy and discretionary power. But for judges embedded in the local norms, precepts and practices that inform thao dang narratives, the appropriate outcome is generally well understood. They know more about the rules of the game governing their local community than about provincial, national and international rules.94 They consequently require fewer assumptions and generalizations in using thao
Interviews with Hoang Ngoc Hien (n 88). Hanoi Peoples Court, Case No 20-PTDS, 31 Jan 1996. See generally R Rorty, Justice as a Larger Loyalty in R Bontekoe and M Stepaniants (eds), Justice and Democracy: Cross-Cultural Perspectives (University of Hawaii Press, Honolulu, 1997) 1114; M Walzer, Thick and Thin: Moral Argument at Home and Abroad (University of Notre Dame Press, Notre Dame, IN, 1994) 410.
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dang narratives to resolve cases. Put differently, local rules provide thick descriptions of everyday life and as such are highly prescriptive and nuanced, giving judges little discretionary room to manoeuvre. Laws, on the contrary, are highly edited versions of reality and give judges considerable scope to arrogate discretionary powers to create legal fictions to resolve disputes. Judicial reforms have triggered a dilemma for the party: while local courts are expected uniformly to apply central law, they generate legitimacy and authority by bending these norms to produce situationally responsive justice. After decades of tacitly encouraging thao dang narratives, the party is now actively encouraging judges to use law-based reasoning mediated by party policy to resolve hard cases. Central authorities recognize that courts must protect the gia tri chung (common values) of human beings, but encourage judges to model their understanding of common values on laws and party policies.95 Further movement towards law-based outcomes depends on the development of an authoritative set of secondary rules or doctrines to interpret the law. Without secondary rules to guide them, lower court judges may worry more about the situational validity of their actions and show less interest in fitting their decisions into a broader legal fabric. 5. Developing secondary legal rules There is a growing awareness among senior party leaders that judges need secondary rules and legal precedents and doctrines to resolve hard commercial cases.96 They foresee a rapid increase in hard cases as Vietnam further integrates into world markets. Party and State guidelines cannot provide the detail and nuance judges need to interpret technically complex commercial laws and arguments. At the same time, narrow textual readings of legislation rarely generate the legal arguments judges need to apply law to case facts. Judges need secondary rules or doctrines to decide in what circumstances it is appropriate to give legislation a broad interpretation that extends legal protection to litigants. They also need doctrines to search for redundancies, or reasons why certain contextual elements in cases are irrelevant. What is needed is a method of synthesizing secondary rules from appellate court decisions, academic commentary and other legal sources. The Supreme Peoples Court (SPC) is leading the way in developing secondary rules. It has recently published selected cassation review decisions from the Judicial Council to develop a judicial precedent system. It also publishes similar fact
95 Ngayen Manh Cuong, Yeu Cau Cua Viec Xay Dung Nha Nuoc Phap Quyen Doi Voi Doi Moi To Chuc va Hoat Dong Cua Cac Co Quan Tu Phap [How to Reform Judicial Authorities to Build up a Law-Based-State] [2002] Nghien Cuu Lap Phap 31. 96 See Resolution No 49-NQ/TW June 2006 that instructress the SPC to determining the implementation of law and developing judicial precedents. See JICA, Vietnam Japan Joint Research on the Development of Judicial Precedents (Hanoi, 2007) 2034.
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case judgments (nghi quyet hoi dong tham phan) and guidance letters (thong tu huong dan) that give inferior court judges detailed procedural instructions.97 In another initiative, the SPC has prepared a judicial handbook that gives inferior court judges broad ethical and procedural advice. Perhaps because reforms started earlier or more emphasis has been placed on rigorous judicial training, the shift towards legal reasoning has moved further in China than in Vietnam.98 In Vietnam cassation review decisions rarely provide legal reasoning to explain how judges apply the law to the facts. It is consequentially difficult for inferior-level judges and lawyers to ascertain whether the courts legal viewpoint applies to similar cases. So far, published decisions have avoided important legal theoretical issues and mainly concern questions of procedure. Evidence suggests that judicial precedent and other secondary rules are slowly forming legal doctrines that will eventually assist commercial judges to interpret legislation and make socially important decisions. Meanwhile, it is still unclear whether the party and State will countenance a hermeneutic tradition that gives administrative court judges powers to transpose political, moral and economic precepts into legally justiciable questions. This road leads to policy-based judicial responses that may challenge party leadership. C. The Role of Lawyers in Promoting Hermeneutic Narratives Before doi moi reforms took hold in the mid-1990s, lawyers were peripheral players in court cases. State authorities appointed lawyers in serious criminal trials, but litigants in civil cases went unrepresented.99 While fewer than 10 per cent of litigants in post-doi moi Vietnam have legal representation, approximately 50 per cent are represented in economic cases. Lawyers believe that adversarial reforms, though limited in scope, have given them more opportunities to insist that judges base outcomes on legal arguments.100 A case decided by the economic division of the Hanoi Provincial Court in 2006 illustrates this process.101 UBIK Design Company brought an action against the Union Metropole Joint Venture Company claiming a service fee
97 eg, the Annual Report in 2000 gave economic court judges doctrinal rules to distinguish civil and economic cases. See Toa An Nhan Dan Toi Cao (Supreme Peoples Court), Giai Dap Mot So Van De Ve Hinh Su, Dan Su, Kinh Te, Lao Dong, Hanh Chinh va To Tung [Annual Report on Criminal, Civil, Economic, Labour, Administrative and Procedural Laws] (1 Feb 2000) 6364. 98 See Z Qianfan, The Peoples Court in Transition: The Prospect of the Chinese Reform (2003) 12 J of Contemporary China 69101. 99 Interviews Le Kim Que, President Bar Association of Hanoi, July 1998 and Sept 1999. Also see B Kim Chi, Providing Legal Services in Vietnam: A Practitioners Viewpoint in S Leung (ed), Vietnam Assessment: Creating a Sound Investment Climate (Institute of Southeast Asian Studies, Singapore, 1996) 10713. 100 Judges in large cities have applied the reforms more than their counterparts in rural and remote areas. See UNDP (n 69) 2567, 2625. 101 Comments on this case are based on interviews during March, April, and October 2006 with lawyers from N H Quang & Associates, the law firm that represented the plaintiff.
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for architectural designs prepared for the historic Metropole Hotel in Hanoi. The parties agreed they were bound by an economic contract, but disagreed about liability for part performance of several service contracts. The plaintiffs lawyers were prevented by the Civil Procedure Code 2004 from presenting documentary evidence showing substantial progress on the service contracts.102 Although oral evidence is admissible, judges generally behave as if they are trying criminal actions and seek admissions of liability from litigants and even witnesses. To some extent just by being there lawyers shape courtroom discourse. Pretending to be a judge while really pursuing political or economic interests is fairly difficult when these purposes must be translated for the benefit of lawyers into an appropriate legal vocabulary. Unfortunately civil procedural reforms have generated little formal compulsion for judges to listen to lawyers. To make matters worse, judges are under little pressure to rationalize and legally justify decisions in any significant sense. Lawyers in the UBIK case, for example, complained that the presiding judge preferred arguments based on subordinate legislation such as official letters to those grounded in legal principles extracted from superior laws. Judges generally consider subordinate legislation politically safe, because it discloses party and State policy in meticulous detail. For example, the presiding judge in the UBIK case prevented lawyers from analogizing legal points from other cases. He cut short interpretive legal reasoning by directing lawyers to confine themselves to the facts. Lawyers use pre-trial conciliation meetings to circumvent highly mediated courtroom exchanges and persuade judges with hermeneutic arguments.103 For example, lawyers in the UBIK case convinced the judge before the case began to use the Civil Code 1995 to interpret the service contracts. If the judge had listened to the defendants and applied the Ordinance on Economic Contracts the plaintiffs case would have failed, because the ordinance does not support claims for part performance of service contracts.104 It is useful to consider why the judge was open to legal arguments during the pre-trail meetings and closed down legal discussions during the trial. In the pre-tail exchanges the lawyers and judge discussed issues in an informal personalized language that emphasized the speculative nature of the ideas and interpretive techniques. It also encouraged a reciprocating candour. Legal ideas were raised as opinions or suggestions rather than immutable principles and issues were debated using subjective phases such as y kien cua toi la (in my opinion) or toi co cam giac la (it seems to me).
See Civil Procedure Code 2003, Arts 813. See Nguyen Phu Son (n 62) 2930. Pre-trial conciliation is compulsory before economic and civil court trials. Civil Procedures Code, Art 180. 104 This was a controversial legal point because the Civil Code 1995 did not in legal theory govern economic contacts. Since this case was decided the revised Civil Code 2005 now specifically applies to economic contracts.
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Lawyers constantly repeated principles, doctrines and strategies for resolving the case. After several meetings is became clear that the judges had assimilated these ideas and were beginning to conceptualize the dispute in corresponding legal terms.105 The lawyers were convinced that hermeneutic arguments are much more likely to persuade judges in informal settings where the judges ignorance is not on public display. Most lawyers interviewed use hermeneutic narratives to weave a protective legal web around their clients property rights. They struggle against narrow textual analysis, which they believe gives too much authority to subordinate rules that are drafted to protect government interests. On a more prosaic note, they actively promote legal arguments to expand the demand for legal services into new social and economic fields. Unfortunately not all lawyers support hermeneutic reasoning. The winnertakes-all mentality in adversarial cases induces some lawyers to subvert lawbased processes. They use moral and political appeals, press campaigns and even bribery to secure an advantage. By strategically promoting political and moral arguments, they undermine legal reasoning and the capacity and willingness of judges to transpose political, economic and social issues into legal questions. D. Courtroom Corruption The extent to which self-interest influences judicial decisions is difficult to gauge. Lawyers that were interviewed believe it is a significant problem.106 Their anecdotal accounts intimate that at one level judicial corruption is formalized in a range of extra fees charged to process court documents. Small bribes of this kind rarely determine outcomes, though they may reduce access to courts by increasing costs. At another level, some bribes induce judges to change determinations of liability and/or remedies. Bribery persuades judges to substitute personal interests for political, economic and legal considerations.107 Goal substitution flourishes where the legal guidelines controlling judicial discretionary are vague and contradictory. Supreme Court professional guidance and similar fact cases have the potential to reduce judicial discretion and as a consequence the opportunities for corruption. As one lawyer put it, judges cannot turn night into day and corrupt behaviour is more difficult to disguise in legally transparent domains.
105 In some cases, lawyers arrange for judges to attend seminars and informal workshops that explain complex doctrinal issues, such as foreign legal protocols, electronic commerce, or international banking law. 106 See generally P Nicholson, The Vietnamese Courts and Corruption in T Lindsey and H Dick (eds), Corruption in Asia (The Federation Press, Leichhardt, 2002) 21517. 107 Lawyers interviewed say that judges use their associates as go-betweens to solicit bribes from litigants. A practice has arisen where judges return bribes to loosing parties.
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In China and Vietnam discussions about judicial accountability most commonly arise in the context of corruption.108 Some forms of judicial accountability have already been considered, such as party leadership, collegiate decision-making and responsibility for community expectations manifested in situational responsive decisions. Other mechanisms include anti-corruption legislation, judicial supervision by legislative bodies and the procuracy, and citizen-compliant mechanisms. Although recent anti-corruption campaigns have resulted in some highly publicized prosecutions, without a more transparent legal landscape judicial corruption is difficult to detect.109 There are trade-offs between judicial power and accountability systems needed to curb judicial corruption. As we shall see presently, judicial power is partially determined by public esteem for the courts. Accountability mechanisms that strip away some judicial discretion, but in the process reduce corruption, may increase judicial prestige and power. The lawyers interviewed believe that widespread bribery undermines hermeneutic narratives. Corrupt judges substitute personal values for legal reasoning. But equally importantly, many judges lean towards cautious textual interpretation and guidance from higher authorities, because judicial creativity is easily misconstrued as corruption. E. Developing Judicial Discretionary Powers The case studies show that four main narratives inform judicial discretion. First, party policy, which is the most hierarchically important narrative, predisposes judges to privilege the party and State benefit. Since party-sponsored precepts are generally vague and non-specific (except in politically sensitive cases), judges search for other narratives to decide cases. Secondly, in addition to party policy, the State promotes a textual narrative in which judges are supposed to passively and mechanically apply legislation to the facts in question. Because superior laws are frequently hortative, judges seek guidance from the prescriptive sub-regulations issued by government agencies. Where legislation provides no clear answer, judges turn to higher courts for professional guidance or to collective decisions made by judicial committees (uy ban tham phan). Textual narratives reduce judicial discretion by discouraging judges from imaginatively applying law to resolve hard cases. Thirdly, in contrast to the previous narratives, thao dang narratives are not officially encouraged. Judges are constantly reminded by the State to base their decisions on the law rather than sentiment and community morals.
See Peerenboom (n 45) 2958. eg, Vo Trong Hieu, a judge of the civil division of the Ho Chi Minh City Peoples Court, was denounced to the police when he failed to return a bribe solicited from an unsuccessful litigant. See Author Unknown, Former Judge to Stand Trial for Taking Bribes [3 Oct 2004] Thanh Nien 3; trans, Development Vietnam (Intellasia New Service, 6 Oct 2004) 17.
108 109
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Nevertheless, judges (especially in the inferior courts) routinely apply situational reasoning to bend laws in order to generate socially acceptable outcomes. Together with local customs and precepts, law is one of many normative sources for deciding cases. Counter-intuitively, thao dang narratives may actually reduce discretionary powers, because local-level judges are accountable to community expectations. They also constrain the use of hermeneutic legal reasoning to solve local problems. Fourthly, the official textual narrative is far too carefully upheld by the State to allow judges to use openly hermeneutic narratives in the courtroom. This forces judges to develop legal fictions that overcome shortcomings in text-based outcomes in unmediated pre-trial exchanges. But any trace of this highly creative law-making disappears in written judgments, which scrupulously apply the official textual narratives. Despite these constraints, hermeneutic narratives, mainly derived from imported ideas and practices, are beginning to provide solutions to domestic commercial problems that are not currently available in local political economic and social thinking. All this suggests that a rather different relationship exists between judicial independence and judicial power than most court reform projects admit. As legal reasoning develops, judges do not become immune from extraneous political and moral ideas, but rather the particular form in which political or moral ideas enter the law is determined by the laws sense of its own purpose and usefulness. Judges are never politically neutral. If a litigant, for example, objects to a judicial decision on the basis of political interference, the objection is not external to legal reasoning. Rather, it represents an attempt to alter the legal discussion so that what the judge thinks is internal to the law changes. Put differently, if the judicial decision changes it is not because legal reasoning has been made to bend to political pressure, but because the decisionmaking structure, which already contained moral and political precepts, has been given another moral and political shape. The development of hermeneutic narratives is vital for discretionary power in socialist-transforming East Asia, because they provide the epistemological assumptions and logic that enable judges to understand politics on their terms. F. Assessing the Potential for Courts to Base Decisions on Hermeneutic Narratives Several countervailing factors influence the capacity and willingness of judges to use hermeneutic narratives to decide cases. One of the main determinates is the receptiveness of judicial thinking to new ideas and approaches. For decades socialist legal thinking discouraged judges from bringing legal discourse into conversation with local moral and economic norms and practices.110 Inflexible central economic laws were reconciled with social and
110
Socialist legality does not recognise customary law. See Le Hong Hanh, Giao Trinh Ly Luan
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economic conditions by applying reason and sentiment. Political prudence was preferred to home-grown jurisprudence.111 This closed epistemology prevented knowledge gained by judges from developing into a coherent system of legal reasoning. Following doi moi reforms, and especially after the party-endorsed international trading agreements such as the Bilateral Trade Agreement (BTA) and the World Trade Organization (WTO) agreements, the epistemological settings governing official thinking have expanded.112 Further movement in this direction is constrained, however, by the historical suspicion in socialist countries that legal reasoning has its own internal logic and values that will lead judges away from the party line.113 For example, an influential Supreme Court judge worries that hermeneutic narratives will over time create an epistemological framework that encourages judges to reinterpret party policy.114 Meanwhile, pressure is mounting for courts that can competently resolve the complex commercial disputes generated by international trade and investment. For different strategic reasons international donors agencies and central regulators find common cause in promoting law-based decision-making. From a central State perspective, thoa dang decision-making substitutes local solutions for party-sponsored legislation and promotes local protectionism, pluralism and exceptionalism at the expense of nation building and nha nuoc phap quyen (law-based State). It also suits the party to distance itself from sensitive commercial struggles between foreign and local enterprises and from intractable civil disputes over housing and personal debt. For international agencies the main concern is to decouple local courts from their embeddedness in local structures and traditions and open the decision-making to globalized legal texts and processes. Neither the Vietnamese State nor international donors have articulated a programme that will give judges discretionary power over important commercial disputes. The party promotes policy and textual narratives, while international agencies have mainly focused on structural changes designed to separate judges from the party and State, such as pay rises, tenured appointments, and comprehensive administrative reforms. Although these reforms are undoubtedly needed, without fundamental changes to legal education they will not necessarily engender a hermeneutic tradition that gives judges powers
Nha Nuoc va Phap Luat [Textbook on Theories of State and Law] (Peoples Police Publishing House, Hanoi,1998) 291325. 111 See N Hung Quang and K Steiner, Ideology and Professionalism: The Resurgence of the Vietnamese Bar in J Gillespie and P Nicholson (eds), Asian Socialism and Legal Change: The Dynamics of Vietnamese and Chinese Change (Asia Pacific Press, Canberra, 2005) 198200. 112 See J Gillespie Changing Concepts of Socialist Law in Vietnam in J Gillespie and P Nicholson (eds), The Diversity of Legal Change in Socialist China and Vietnam (Asia Pacific Press, Canberra, 2005) 4575. 113 See R Kinsey, Karl Renner on Socialist Legality in D Sugarman (ed), Legality, Ideology and the State, (Academic Press, New York, 1983) 369. 114 Interviews Dang Quang Phuong (n 49).
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to transpose political, moral and economic precepts into legally judicable questions. Lawyers are playing an important role in promoting a hermeneutic tradition. Changes to civil procedural rules have given them more opportunities to introduce new ideas into legal discourse. Lawyers use informal exchanges with judges to introduce laws, precepts and doctrines borrowed from international legal practices. This body of knowledge is slowly expanding the legal sources (thua nhan luat) available to judges. As lawyers gain advocacy skills and knowledge, judges will increasingly need to transpose political, moral and economic considerations into a legal language that is susceptible to legal reasoning. Scrutiny by the international press and donor community may add further momentum for change. If judges act politically and pretend to apply the law, the charade is easily exposed and courts lose legitimacy. This does not mean that judges do not have recourse to moral and political precepts and beliefs in deciding difficult commercial cases; but rather that under scrutiny by lawyers, judges increasingly will apply legal criteria to interpret external (to the law) concepts.
VI. JUDICIAL AUTHORITY
The third element of judicial power concerns the capacity of judges to enforce their decisions. Whether judicial decisions reflect the imperatives of legal, party or thao dang narratives, seeing those decisions enforced is a matter of common concern. There is ample empirical evidence that court judgments are difficult to enforce in Vietnam. World Development Indicators in 2005 show that it took on average 404 days to enforce a contract in Vietnam, compared to 241 days in China and 69 days in Singapore.115 As in China, judicial authority in Vietnam is compromised by powerful party and State bodies.116 For example, a Supreme Court order for the eviction of residents made in 1997 remained unenforced in 2006.117 The plaintiff commenced action to recover her house, which had been acquired (trung mua) by the Hanoi City Peoples Committee during the 1960s. The State recognized private ownership of houses in 1991.118 By the mid-1990s courts throughout the country were clogged with hundreds of politically sensitive cases seeking orders to evict party and State officials living in privately owned villas.119
115 World Development Indicators, World Bank 2005 <http://www.devdata.worldbank.org/ wdi2005/Table5 3.htm>. A recent survey showed that lawyers believed that only 24 per cent of court orders in commercial cases were successful. Leadco (n 29) 5960. 116 D Clarke, Power and Politics in the Chinese Court System: The Enforcement of Civil Judgments (1996) 10 Columbia J of Asian L; Peerenboom (n 45) 3268. 117 Duc Hoa, Ban An Ach 10 Nam Vi Mot Lanh Dao TP Hanoi [A Court Judgment in Hanoi could not be Enforced for 10 Years] [July 2006] Dan Tri, <http://www8.dantri.com.van/Sukien/ 2006/7/127270.vip>. 118 See Ordinance on Residential Housing 1991. 119 For discussions about solving housing disputes see Tuoi Tre (23 June 1996); Tran Quang
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In 2004 the Hai Ba Trung District Justice Department were preparing to enforce the eviction notice, when they received a telephone call from Le Quy Don, Vice Chairman of the Hanoi City Peoples Committee. He ordered a temporary stop on the enforcement to enable the relevant authorities to reconsider. The report speculated about possible collusion between the Vice Chairman and the occupants of the villa and concluded that the long delay and darkness surrounding the case undermined public confidence in law enforcement and the judicial system. On a rational calculation of their interests, most businesses prefer to use comparatively effective extra-judicial, particularistic mechanisms to enforce business agreements. Respondents surveyed show high levels of satisfaction with dispute resolution by grassroots mediation boards comprised of members of neighbourhood councils (to dan pho)informal mediation with business partners or associations.120 Even judges stress pre-trial mediation as a way of avoiding court-based enforcement.121 As a last resort some creditors hire members of the dau gau (black society) or enter collusive arrangements with the police or tax authorities to encourage recalcitrant debtors to pay. A negative public perception further undermines the capacity of judges to secure compliance with court orders. For Johnson, McMillan, and Woodruff the relevant question is what [the entrepreneur] believes would happen if there is a dispute in the future.122 In China and Vietnam there is a well-documented mismatch between what courts do and what society thinks they should do. The people in Vietnam were conditioned during pre-colonial times into treating law as a punitive instrument, rather than as a means of ordering horizontal social transactions.123 A deep-seated preference for non-adversarial (hoa giai) forms of dispute resolution persists today. In a recent survey over 41 per cent of respondents cited loss of face and harmony as reasons for avoiding adversarial litigation.124 Some Vietnamese commentators point to a disjunction between legal reasoning and everyday understandings of justice.125 This mismatch finds expression in low levels of legal awareness (y thuc phap luat) and the numerous popular
Minh, Lay Lai Nha O Vang Chu Ma Nguoi Khac Dang Ky Su Dung [June 2000] Nhan Dan, <http://www.nhandan.orgvn/vietnamese/phapluat/137.html>. 120 See UNDP (n 30) 16; Leadco (n 29) 6163. Also see McMillan and Woodruff (n 29) 1285. 121 Do Xuan Loi, Role of Mediation in Judgment Enforcement [2005] Democracy & L 445. 122 S Johnson, J McMillan, and C Woodruff, Court and Relational Contracts, (2002) 18 J of L, Economics and Organisations 221, 227. Also see P Solomon, Judicial Power in Russia: Through the Prism of Administrative Justice (2004) 38 L & Society Rev 552. 123 See Pham Duy Nghia, Confucianism and the Conceptions of the Law in Vietnam in J Gillespie and P Nicholson (eds), Asian Socialism and Legal Change: The Dynamics of Vietnamese and Chinese Reform (ANU, Canberra, 2005) 76; Pham Duy Nghia, Noi Doanh Nhan Tim Den Cong Ly [Where do Entrepreounr Go for Justice] [2003] Nghien Cuu Lap Phap 4554. 124 See UNDP (n 30) 1213; Leadco (n 29) 67. 125 Interviews with Hoang Ngoc Hien (n 88). Also see D Thi Ngoc Tong Hop Cac Noi Dung Co Ban Cua Hoi Thao Van Hoa Tu Phap [Major Contents of the Conference Judicial Culture] [2001] Thong Tin Hhoa Hoc Phap Ly 1332.
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proverbs, such as mot bo cai ly khong bang mot ty cai tinh (a granary of reason does not equal a little bit of feeling) and law is the lowest form of morality. Further alienating the public from courts is the problem that legal reasoning is not particularly attuned to resolving disputes to the satisfaction of all concernedthao dang decision-making and mediation are more suited to situational justice. This is because the role of law in judicial decisions is not to produce socially grounded decisions. On the contrary, as Gunter Teubner observed, court judgments falsify the realities of the conflict and produce decisions that are based on self-produced fictions.126 Legal reasoning produces acceptable outcomes, not because the law is responsive to underlying social conditions and is generally understood, but rather because the law provides solutions to otherwise socially intractable problems. Judges use law to reconstruct political, moral and economic problems into an artificial legal language. Once this process is complete these precepts are no longer recognizable as political, economic or moral conflicts and have transformed into legal questions. There is a well-founded popular scepticism about the efficacy of pursuing justice through the courts. Surveys suggest that concerns about the professional competency and impartiality of judges are more significant than cultural factors. For example, surveys rate dishonest and unfair judges (74 per cent) and unclear legal rules (65 per cent) as the main reasons for avoiding litigation.127 Judges are considered unsympathetic towards the private sector, basing decisions on status as well as bribes, and treating legal rules as convenient, but optional, ways of getting things done. The perception of systemic bias, incompetence and corruption influenced more than 90 per cent of private sector respondents surveyed to conclude that courts would not satisfactorily resolve commercial disputes.128 Both empirical and perception-based studies show that economic and civil court judges lack authority, and as a corollary they struggle to secure public compliance with their decisions. Courts dealing with commercial cases appear to lack integrity as measured by the reservoir of public support for courts as dispute resolution institutions. To some extent new courts everywhere take time to attract public support.129 But courts dealing with commercial cases in Vietnam have a well-deserved image problem that is likely to affect the willingness of the public to follow their pronouncements for some time to come.
126 G Teubner, Alienating Justice: On the Surplus Value of the Twelfth Camel in Priban and Nelken (n 65) 23. 127 See UNDP (n 30) 3. Similar results were found in a more recent survey about commercial courts. See Leadco (n 29) 634. 128 McMillan and Woodruff (n 29) 12856. A more recent study about courts found that only 35 per cent thought that courts would fairly and impartially resolve disputes. See UNDP (n 30) 1415. 129 See, eg, A Trochev, Implementing Russian Constitutional Court Decisions (2002) 11 East Eur Constitutional Rev 95103.
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VII. CONCLUSION
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This article began by positing that judicial independence is a proxy for what really matters in court reform: judicial power. The cases discussed reveal a complex interdependency between judicial power and judicial independence. While politics always threatens judicial independence it both threatens and supports judicial power. It is possible to have powerful courts that are not independent from politics. For commercial courts in Vietnam to make authoritative and socially meaningful decisions they require the forbearance, if not the active support, of politics. Efforts by international agencies to promote effective courts are impeded by their preoccupation with judicial independence. To refocus their efforts, reforms should begin with detailed empirical studies about the interplay between judicial independence and politics. Three elements of judicial power, namely jurisdiction, discretion and authority, offer promising ways to understand this dynamic relationship. First, jurisdictional powers are vulnerable to politics. Legislatures can wind back judicial power by amending procedural legislation. However, even mono-party systems in socialist-transforming East Asia are generally reluctant to incur international (and perhaps domestic) censure by limiting the role of the courts in resolving commercial problems. In this view jurisdictional powers are safeguarded by international treaty obligations and public esteem and demand for courts. Secondly, the relationship between discretionary power and judicial independence is complex. The party has promoted organizational changes that partially protect courts from government interference. It also supported adversarial court procedures that have empowered lawyers to push judges towards a hermeneutic mode of reading law. Case studies suggest that legal arguments formulated during pre-trial discussions with lawyers are reformulating, even supplanting some State-sponsored doctrines. Further movement in this direction is, however, contingent on party support. During their inception phase courts are highly vulnerable to political pressure. The party and State have a formidable array of political and administrative weapons at their disposal, such as licensing, censorship and sedition powers to control judges and lawyers who are pushing reforms in dangerous directions. But their power to use these weapons is contrained. The partys legitimacy is increasingly tied to economic prosperity, international economic integration and securing a law-based State. It is also responding to pressures from international donors and the investment community to establish courts with the legal repertoire needed to resolve complex commercial disputes. What seems likely in the future is that commercial courts will eventually acquire a qualified independence. Criminal and administrative courts hearing sensitive claims involving the State benefit, on the other hand, are likely to
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remain under tight political control. As legal developments in Singapore and Malaysia demonstrate, well-developed commercial courts can coexist with illiberal political regimes, but courts are generally the last State institution to gain power over political decision-making.130 Thirdly, judicial power to enforce decisions is closely tied to public perception about judicial integrity. What constitutes integrity is not just a function of honesty and truthfulness. It also corresponds to the systems of validity that guide judicial reasoning. This creates a problem for court reformers, because there are different views within society about what constitutes the most suitable validity system. For example, foreign investors are likely to prefer lawbased notions of validity that permit creative legal solutions to complex disputes. Small-scale businesses, on the other hand, may prefer judges to use local community values to guide judicial reasoning. Faced with this clash of values, reformers will struggle to improve judicial integrity with law-based solutions. Together these themes suggest that judicial independence is not a precondition for developing effective courts in socialist-transforming East Asia. The first lesson for international donors contemplating court reforms is that attempts to de-politicize the judiciary are likely to cut across deeply ingrained incentive structures and undermine political support for the courts. Without political forbearance newly created courts will struggle to acquire the discretionary power required to make meaningful and enforceable decisions. The second lesson is that only a fundamental change towards hermeneutic reasoning will increase the power of courts to make decisions over meaningful economic issues. This shift in thinking will require substantive reforms to the legal education system and the professional incentives to base judicial reasoning on law. Even then it will take time for judges and lawyers to develop hermeneutic reasoning that satisfies the different needs of commercial litigants. The third lesson is that no judiciary is entirely beyond politics. At most, the judiciary can reach an accommodation with political forces that provides relative independence to use legal reasoning to make decisions. This compact can be influenced by businesses pressing for effective dispute resolution and social organizations, media, trade unions and other civil society groups that demand access to justice. The fourth lesson is that judicial integrity is more important than independence in exciting judicial power. Newly emerging courts need accountability mechanisms not only to develop high ethical and professional standards, but also to generate social legitimacy. Highly autonomous courts can avoid outside scrutiny. But if judges are to acquire judicial power they need the public to believe in their integrity and capacity to deliver socially meaningful judgments.
130 See S Cooney, The Effects of Rule of Law Principles in Taiwan in Peerenboom (n 23) 4247; L Pech, The Rule of Law in France in Peerenboom (n 23) 8998.
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The fifth lesson is that in socialist-transforming East Asia social expectations for what constitutes effective commercial courts are fragmented. Commercially sophisticated entrepreneurs want decisions based on the rule of law, while most domestic entrepreneurs prefer outcomes that reflect local norms and practices. Court reforms must traverse these different social expectations.
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RETHINKING THE ROLE OF JUDICIAL INDEPENDENCE IN SOCIALIST-TRANSFORMING EAST ASIA JOHN GILLESPIE*

[ICLQ vol 56, October 2007 pp 837870]

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Judicial Independence in East Asia

II. TRANSPLANTING JUDICIAL INDEPENDENCE

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III. JUDICIAL POWER

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Judicial Independence in East Asia 3. Post-doi moi judicial reforms

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