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| Speeches
Australian Lawyers Conference
The judiciary in a shrinking world: the international exchange of ideas among the judiciary of Vietnam and Australia
Justice Michael Moore
[July 1999]
Introduction
In 1986, the Vietnamese Government announced its policy of "doi moi" or "renovation". Since then Vietnam's economy has been changing
as Vietnam has become increasingly engaged internationally, both politically and economically. Vietnam's institutions, including
its legal system, have had to adapt to meet these changes. The Government of Vietnam has set about achieving this in relation to
its legal system and doing so by drawing on the experiences of other nations and their legal systems. Australia is one of them. The
Australian judiciary plays a role in this process, and this paper will outline the nature of the judicial discourse taking place
between Australia and Vietnam [1]. It is an interesting and, as far as I am aware, largely unprecedented development. It also illustrates how, increasingly, we are
living in a "global community", with nations with historically very different ideologies and traditions exchanging ideas for their
mutual benefit.
Background
I commence with a brief sketch of the development of the Vietnamese legal system as I understand it. I should emphasise that I am
not a scholar of Vietnamese legal history or its contemporary legal system and these observations are drawn from the writings of
others. For most of its comparatively recent history Vietnamese social relations were governed by Confucian-based concepts of obligation
and cooperation. Law in such a context was understood less as a set of rules regulating relationships between people than as a complex
and subtle code of moral obligations. In essence, a sense of doing something because that is what you ought to do. French colonisation
led to a code-based legal system and legal infrastructure. Vietnam's post WWII transition to socialism brought with it a Soviet model
of socialist law, the adaptation of which was reasonably compatible with the existing French system. However socialist law modelled
on the Soviet system entailed a significant role for the Communist Party. The development of socialist law led to a gradual but pervasive
change to the legal infrastructure established under French rule. The result was a period of forty years in Vietnamese legal history
where law did not have independent authority. Law was, in part, a means of implementing Party policy.
The departure from orthodoxy to the 1986 policy of "doi moi", or "renovation" involved a marked shift. Like the Soviet policy of "perestroika",
"doi moi" was directed to the modernisation of Vietnam through transition to a market economy, though without relinquishing socialism
as the governing ideology of the state. This reform was coupled with a concerted drive to attract foreign investment to Vietnam,
with legislation to achieve this end being passed in December 1987. In the period 1987 to 1994 over 160 pieces of legislation relating
to economic law and investment were enacted by the National Assembly [2]. Also enacted during this period was the 1992 Constitution of the Socialist Republic of Vietnam, which provides in Article 57 that the citizen enjoys freedom of enterprise as determined by
law and in Article 58 that the citizen enjoys the right of ownership in relation to income, savings, housing, chattel, means of production
and other possessions in enterprises or other economic organisations. The Constitution also provides in relation to the judiciary that judges are independent and shall only obey the law (Article 130), though states that
the courts of Vietnam must, within the bounds of their functions, safeguard socialist legality and the socialist regime (Article
126).
Notwithstanding that there is now underway a process of change, Vietnam still seeks to maintain self-reliance and autonomy. It is
a principle which is enshrined in the 1992 Constitution and which governs all aspects of Vietnam's engagement with other countries and international organisations. And with an ongoing ideological
commitment to the socialist system, the Vietnamese government is not seeking a wholesale adoption of Western-style law and government.
In 1994 Vietnam sought assistance from the Swedish Agency for International Development, SIDA, when it began to consider the need
to strengthen its legal infrastructure in a manner consistent with increased foreign investment. A key priority of Vietnam's approach
was to gain an understanding of the basic functions and concepts of market-based legal systems, with particular focus on the unfamiliar
traditions of the common law. Vietnam followed the Swedish project by approaching the United Nations Development Program (UNDP) for
further ideas and assistance in developing the rule of law in Vietnam. A result of this has been an extensive and ongoing UNDP funded
project titled "Strengthening judicial capacity in Vietnam".
The UNDP project was created in consultation with the Vietnamese Government and its ultimate objective is to strengthen the rule of
law in Vietnam within the context of rapid economic change. The Vietnamese judiciary is of central importance to the project because
it is the judges who must understand, interpret and apply the new laws that deal with the type of problems arising in the market
system, such as bankruptcy, insolvency or property law. The value of exposure to comparative law has been emphasised (by the UNDP
project objectives, formulated in consultation with the Vietnamese government), particularly in relation to the drafting and implementation
of civil procedures. Accompanying this program of external assistance there appears to have been an effort of the part of the Vietnamese
government to strengthen the authority of the courts, to increase the budget of the legal sector, and to train and retrain thousands
of judges in an increasing number of law schools throughout the country. The Vietnamese government has taken active steps, with its
own resources, to ensure that all judges currently within the system have an opportunity to study to at least the LLB level [3].
What is involved in strengthening the judiciary in Vietnam
The project is an ambitious one. There are presently thousands of judges in Vietnam. The court sector in Vietnam, as I understand
it, consists of a three-level hierarchy headed by the Supreme People's Court (SPC). The SPC maintains a supervisory role over the
judicial work of the lower courts and specialist tribunals, and consists of a President and several Vice-Presidents, the Council
of Judges (which is the highest adjudication arm in the system), the Committee of Judges, three appeals divisions handling appeals
from provincial and province-level courts, and criminal, civil, economic, administrative and labour tribunals responsible for supervision
and review of decisions made by the provincial people's courts. This SPC structure is staffed by approximately 80 judges.
Below the SPC in the court hierarchy, Provincial People's Courts hear first instance and appellate cases in Vietnam's 53 province
and province-level administrative units. The 53 Provincial People's Courts are staffed by over 1000 judges. Below the provincial
courts are 600 District Courts that hear first instance cases of lower jurisdiction. These are based in rural districts, provincial
capitals, larger towns and urban districts, and are staffed by several thousand judges. At the moment, the judicial personnel involved
in the UNDP project come primarily from the higher levels of the court hierarchy.
Participants of the reform program recognise that strengthening Vietnam's court system will be a long-term and multifaceted process.
It includes improving the status, prestige and professional role of judges, broadening the knowledge and expanding the capacity of
judges and other court personnel, ensuring that justice as it is rendered in the courts is reliable, ensuring decision making is
entirely transparent and consistent, and improving the physical facilities in which justice is rendered. Not all of these objectives
can be achieved merely by external assistance such as offered by the UNDP project. Indeed, the project objectives explicitly acknowledge
that some issues must be addressed solely or largely within Vietnam. However in some areas, such as broadening the substantive knowledge
and the day-to-day organisational skills of judges, external support can assist, and it is in these areas that Australia's involvement
has been, and one would hope, will continue to be of significance.
I should mention at this point that Australia's involvement in the UNDP project has primarily been through the work of the Centre
for Asian and Pacific Law in the University of Sydney (CAPLUS). CAPLUS was approached in 1994 to provide exposure for Vietnamese
lawyers to the common law system, as part of the wider study of commercial law. Since that time, CAPLUS has been involved with the
Vietnamese Ministry of Justice. This year, CAPLUS won the tender to provide short-term courses in Australia for Vietnamese judges
as part of the wider UNDP project to strengthen the judiciary. The first course was held from 19 April to 14 May this year and was
attended by 20 judicial officers from across the Vietnamese court hierarchy. The second was held from 15 June to 19 July and was
attended by 18 judicial officers. Another delegation will undertake a similar course before the end of the year, and the present
indications are that the program is valued by those attending [4].
An examination of the program organised for the first delegation of Vietnamese judges provides an interesting insight into the priorities
of a legal system in transition. Some of the key areas of interest identified by the SPC and the UNDP include the need to gain greater
understanding of: the role of transparent decision-making in a modern state; the appropriate balance between the interests of the
state and the protection of individual social and economic rights; the nature of judicial skills, such as dealing with witnesses,
drafting judgments and legal research; and the substantive study of key areas of economic law. I understand that many Vietnamese
judges have had limited exposure to laws regulating banking, corporate activity, bankruptcy and related areas of commercial and financial
activity.
Over the four weeks the first delegation of judges visited Sydney they attended lectures concerning a wide range of areas of Australian
law. Topics included administrative law, labour law, human rights law, international trade law, securities regulation, civil litigation,
corporate litigation, company law, bankruptcy, banking law, property law and general lectures on the rule of law, the judiciary and
comparative jurisprudence. The course also offered detailed sessions in judging, practical trial skills and courtcraft. For example,
Justice Michael Kirby presented a workshop on the role of judges in the adversarial system; The Hon. Dennis Mahoney, former President
of the NSW Court of Appeal, conducted a seminar on the skills of judging; Chief Magistrate David Landa and others provided an inspection
of NSW Local Courts; Justice Virginia Bell conducted an inspection of the NSW Supreme Court and Court of Criminal Appeal; The Hon.
Tom Waddell, former Chief Judge in Equity of the Supreme Court of NSW, held a session in managing commercial litigation as part of
a free market system; and judges of the Federal Court invited the visiting judges to sit in on hearings and later engaged in discussions
with their Vietnamese counterparts on the role of courts in commercial disputes. Workshops in case management, dispute resolution,
and measuring court performance were also held, as well as visits to the Police Integrity Commission, the Independent Commission
Against Corruption, the Judicial Commission of NSW, the NSW Bar Association, and a meeting with the Attorney-General of NSW.
Discussions such as those that took place between Federal Court judges and the delegation of Vietnamese judges were, from my perspective,
of real mutual benefit. Questions directed to us about how long we take to decide matters, how long hearings take, and how extensive
our reasons for judgment are stimulate thought and reflection on our own practices and procedures. All the more so if asked by judges
of another country who raise legitimate issues about the real need for the Australian judiciary to go about their work in the way
we presently do.
Returning to the details of the UNDP project, its central focus is economic law. Responsibility for the resolution of economic disputes
was transferred to the court sector in July 1994, when the economic arbitration agencies that previously dealt with such issues were
abolished. However of equal importance to the ultimate outcome of the project is that, by virtue of education in and exposure to
foreign laws, the Vietnamese can themselves make a judgment as to whether those foreign laws have anything to offer Vietnam. This
is an important aspect of the UNDP project and appears to be a significant reason for the Vietnamese commitment to it. The Australian
program exemplifies this. It is clearly not aimed at telling Vietnamese judges how to run their courts, or telling Vietnamese law-makers
how to write their laws. Rather, it is aimed at providing an understanding of the way in which one legal system, and the judiciary
in particular, operates in the context of a market economy. The goal of greater efficiency in the legal regulation of commercial
relations in Vietnam has never, and one suspects never will, result in a wholesale adoption of any particular foreign model. One
readily understands and accepts why the ultimate domestic effect on the development of the Vietnamese legal system of a program such
as that run by CAPLUS is a matter to be determined by the Vietnamese alone [5]. Perhaps the reason for the apparent positive response to Australian assistance thus far is the fact that effort has been taken
to present legal knowledge in a way that the Vietnamese can control [6].
However Australia is far from alone in its interest and involvement in strengthening the Vietnamese legal system. This is understandably
so. A brief perusal of even the most recent additions of Vietnam Law & Legal Forum, a monthly publication produced by the government-run
Vietnam News Agency, reveals that the Vietnamese judiciary and Ministry of Justice are constantly involved in visiting and receiving
guests from the legal systems of other countries. For instance, the Argentine Justice Minister visited Hanoi in October last year
to discuss potential fields of cooperation between Argentina and Vietnam [7], as did a visit from the Danish Supreme Court President in November which aimed to "strengthen the existing cooperation and exchange
experiences" between the courts of Vietnam and Denmark [8]. A memorandum of understanding on judicial cooperation between Vietnam's Ministry of Justice and Japan's International Cooperation
Agency was signed in January this year, and in February Vietnam and France signed an agreement on judicial assistance for civil law
issues, affirming France's policy to give priority to cultural and judicial cooperation with Vietnam [9]. On a more local note, in November last year a memorandum of understanding was signed between the Vietnamese and Western Australian
Ministries of Justice, focussing on the promotion of cooperative relations and mutual assistance between the local courts of Vietnam
and the courts of Western Australia. The memorandum states that both Vietnam and Western Australia recognise the importance of the
courts in the settlement of economic disputes, especially with the integration of the Vietnamese economy into regional and world
economies [10]. And all of this is in addition to projects like that being funded by the UNDP.
To conclude, there are a few things that I would like to emphasise. The first is that I think it can fairly be said that the focus
on strengthening and developing independent courts is, at least in part, a response to the need to attract foreign investment. It
is an accepted reality and it is a key reform priority of the Vietnamese government. National economies are increasingly interlinked
with the global economy. Decisions to invest may often be linked to a consideration of whether the courts of a particular country
will provide an appropriate, independent, impartial, legally-founded decision on disputes that might arise within that country [11].
The second point I wish to emphasise is that the key concept governing Australia's involvement in strengthening judicial capacity
in Vietnam is the notion of interchange. That is, the interchange of ideas, and not the provision of bare teaching or training. Australia's
involvement in the UNDP project, or any other similar initiative, is not, or at least should not be, a one way exercise of tuition.
In Australia, we have a highly developed legal system whose history is as long as the history of contemporary Australia itself. It
is a legal system which was mostly inherited. To a significant extent, we have never had to make fundamental rather than evolutionary
choices about what the law and the legal system should actually be in Australia. The government and people of Vietnam, however, do
have that task. And it is not a simple one.
In considering the merits of comparative legal models and in exercising choice about what to adopt and what to reject, the Vietnamese
should, and no doubt will, reserve room for scepticism of our way of doing things. In a highly developed legal system like ours,
we tend to be less able to resolve many disputes at the local community level. To this point, Vietnam has not lost that ability.
The social and legal infrastructure of Vietnam embraces cultural traditions in a way you do not find in our legal system. The Vietnamese
often incorporate traditional concepts into legal processes and recognise that outside the formal legal system a role can be played
by the communities themselves in dispute resolution [12]. The concepts of cooperation and obligation from the Confucian tradition still dominate the day to day relations of Vietnamese people,
and this characteristic will almost certainly continue to have significance. Such concepts can be expected to exist alongside formal
legal structures, or indeed, underlie them. A number of the initiatives seen in Australia in recent years, like community justice
centres and alternative dispute resolution with its emphasis on mediation, appear to me to reflect, in a sense, an attempt to recapture
some of these non-institutionalised or community-based means of resolving conflicts. The judiciaries of both countries plainly can
continue to learn from each other as we have to date. I hope that Australia and its judges are, in the future, still provided with
the opportunity to do so.
1 I am indebted to my associate Ms Kristen Rundle, who has studied in Hanoi, for her assistance in preparing this paper. I should
also acknowledge the assistance of Associate Professor Alex Ziegert, Ms Karin Lemercier and Mr Matthew Zurstrassen of the Centre
for Asian and Pacific Law (CAPLUS), Faculty of Law, University of Sydney.
2 Samantha Malin, "The current legal regime in Vietnam", Company Director vol.10(10), November 1994, p 39
3 This information about the UNDP "Strengthening Judicial Capacity in Vietnam" project has been extracted from a UNDP Legal Training
Needs Assessment Report 1997 which deals with project VIE/95/17.
4 The Centre for Asian and Pacific Law in the University of Sydney (CAPLUS) was established in 1992 with the objectives of promoting
scholarship and knowledge of Asian and Pacific Laws, legal systems and legal cultures through research and teaching, seminars and
conferences, publications and exchanges of scholars and students between that region and Australia. It was established as a centre
in the University of Sydney for the purpose of drawing on the University's wider resources in Asian and Pacific literature, language,
history, economics and politics. The centre has offices in the Faculty of Law, and since its inception has organised and hosted six
training courses in Australia, three training courses in Vietnam and has compiled two libraries. The projects have been funded by
the UNDP, the Australian Agency for International Development (AusAID), the Swedish Agency for International Development (SIDA) and
the Australian International Legal Cooperation Committee (AILECC).
5 Gillespie, above n.3, p 7
6 ibid, p 12
7 Vietnam Law & Legal Forum, October 1998, p 15
8 Vietnam Law & Legal Forum, November 1998, p 12
9 Vietnam Law & Legal Forum, January 1999, p 20; February 1999, pp 15-16
10 Vietnam Law & Legal Forum, November 1998, p 7
11 Chris Sidoti, "Vietnam: renovation of a legal system", Reform, vol.67, pp 46-47
12 ibid, p 49
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