,A SURVEY OF THE LEGAL SYSTEM
OF THE.REPUBLIC OF VIETNAM
February, 1971
Louisiana State University Law School
Francis C. Sullivan Project Director W. Lee Hargrave Chief of Party
W. Thomas Tete -Research Associate
Prepared'for.the United States Agency for International Development under the terms of Contract AID/VN-50, TABLE OF CONZTENTS
* CHA2TER I THE COURT SYSTEM
4 History p 3
Study of Existing System ,/ 7
&" V Courts of General Ju.--cdiction
9 Jurisdiction/ 12 Y Organization./ 23 Courts of First Instance V 29 K( Courts of Peace with Extended Jurisdiction , 39 Personnel / 39 K Functioning o2 the Various Court Offices / 43 Management2, of the Court Budget and Properties / 45 , Auxiliary Personnel / 49 X Discipline of Judges / 58 K Cost of Litigation V 61 f Litigation Time / 71 Non-Judicial Functions J 74 t Participation of Attorneys v 80 Statistics on Distribution of Attoineys in Vietnam 91
$'1,Courtis of Aneal
c Jurisdiction . 92 p,Type oZ Review / 96 ' Operations / 99 K Organization/ 105 e Case Load -- 107 -Control of the Bar ' 114 Y, Publication of Decisions Al 120
The Su-renue Court
*t Jurisdiction/ 122 Election of Justices / 143 / , Organization -- Administrative' 153 K Facilities 1/ 157 v Supreme Court Finances /" .. 159\ x Case Load ' 164 < Control of Lower Courts 7 166 Council of >agistrates 7 177 > Control Over the Bar , 181 k Non-Judicizl and Quasi-Judicial Functions of Members of the Supreme Court/ 183/ X Operations -- Procedural / 186 i VPublication of Decisions j" 200) /
i - Courts of Limited Jurisdiction General 201) x Administrative Courts Y 205/ --. Special Courts / 210./' 1 Labor Courts / z Juvenile Courts~ /216 213
,< Land Reform Courts / 225 <( Montagnard Custom Courts / 237 )e Pension Courts / 245/ CHAPTER II MINISTRY OF JUSTICE W :istory J "247 v. Functions V 248 9 Prosecutions 249 CA- Representing the Government 255 A Legal Advisor to the Government 256 SLaw Reform and Legislation 7 258 - Drafting of Regulations / 261 < Ccatrol of the Judicial Police / 262 K Control of the Rehabilitation and Detention Centers / 263 O' Organization and Administration . 265 K, Program of Reformatory Activities in the Second Half of 1969 / 273 CHAPTER III CAREER SYSTEM OF JUDGES AND PROSECUTORS / . The Career System / 277 a. The Judicial Career System k1 278 . The Prosecutor Career System 284 CLPTER IV PROCEEDINGS IN THE PENAL COURTS Introduction 288 Code of Criminal Procedure V 288 ilitary Courts and Province Security Comittees ' 316 Pre-Trial Detention 328 Pre-Trial investigation / -343 Right to Counsel - ' 358 Other Constitutional Rights 7 364 Operajions and Control of the Judicial Police / 376 Post Conviction Remedies -- Release from Unjust Government /385 APPENDIX A SUPREME COURT - LIST OF JUDGES 389 APPENDIX B MINISTRY OF JUSTICE - LIST OF PROSECUTORS 405 APPENDIX C MAPS 413.
2 THE COURT SYSTEM
HISTORY
Rooted *in Buddhist and Confucean philosophy, and influenced by
periods of Chinese domination, early Vietnamese conceptions of law placed
the legal system in a secondary position in the society's scale of values.
Individual relationships were to be harmonized with natural laws and
forces, rather than being governed by positive law; disputes were to be
avoided and when they arose they were to be settled by face-saving compro
mises'. Rulers were to be wise and just men adhering to Buddhist or
Confucean principle rather than being circumscribed by enumerations oE
powers. As with the Chinese, the early Vietnamese laws (primarily the
Hong-Duc Code promulgated in the 15th century and the Gia Long Code pro
mulgated in 1812) were more devoted to public order and security than to
individual relations. They did not distinguish between criminal and civil
law and incorporated traditional moral principles while providing penalties
for what amounted to both penal and civil offenses. The adjudicating
officer could disregard positive law if custom were otherwise.
Even during the period of national independence (939-1884),
Chinese influences continued to tailor the court system. The king was the ultimate authority in judicial matters. No separation between judicial and administrative functions was made, and disputes were settled by the king's administrative officials. Six levels of "courts" existing under this system until the middle of the 17th century gave way to three levels about the time of the beginning of the French domination.
Developing earlier religious and economic influences in Vietnam,
a France obtained the southern part of Vietnam, CochinChina, as a colony in
1862. The 1884 Giap-Than treaty provided for French protectorates over Annam (the center) and Tonkin .(the north). Irance introduced an adapta tion of its civilian system of procedural and substantive law and court.,., organization that has had lasting infldence. The attitudes toward law ' - have been slower to change.
Different legal regimes were imposed on the three sections of Vietnam. The Republic of Vietnam being presently composed of the former sections of CochinChina and part of Annam, and the former legal regimes stillbeing in force to a great extent in those two areas, the country still has two systems of different, though clearly related, systems of law.
In Annam, the 1933 Hoang-Viet Criminal Code and a criminal procedure code enacted in 1935 governed. A-civil code and a commercial code were enacted in 1936. In CochinChina,.a revised criminal code adopted in 1912, and a French-based code of criminal procedure were in effect. Civil and commercial affairs were governed by a summary of civil legislation promulgated in 1883, parts of the Gia-Long Code, the Hong-Due Code, and, as "ratio scripta" to fill in gaps, the French Civil Code, Commercial Code, and Code of Civil Procedure. The statutes remain in force, but there is about to be completed a reunification of the law which is expected to result in the adoption of five new basic codes -- Civil Code, Commercial Code, Criminal Code, Code of Criminal Procedure, Code of Civil and Commercial Procedure -- that will dpply uniformly throughout the Republic of Vietnam. Revision commissions have produced drafts for these new codes, three of which are presently pending in the legislature. These
4 codes are evolutionaryand retain the"civilian. tradition ,both in subs tatnee
and procedure.
Court organization was formerly a complex combination of
jurisdictions using both French and Vietnamese.judges, as 'well as local
administrative officials at the lower levels, working.in basically three
levels of courts -- courts of limited jurisdiction, general trial courts,,
and courts of appeal. As Vietnam was given more independence, Emperor
Bao Dai promulgated Ordinance No. 4 of October 18, 1949, providing for the
organization of the Vietnamese courts. A judicial agreement with France
of December,. 1949, provided for combined French-Vietnamese courts that
continued to function until September, 1954, when the French surrendered
judicial power. Ordinance No. 4 of October 18, 1949, continues in effect
and forms the basic law governing the Vietnamese judiciary and defining
the existing judicial system. Superimposed on this French-modeled system
is the Supreme Court envisioned by the 1967 Constitution.
Until implementation of the 1967 Constitution, the entire judicial system was under the authority of the Ministry of Justice, a division of the executive branch of the government, and all magistrates -- prosecutors, examining judges, presiding judges -- were part of one career system. The new Constitution created the independent Supreme Court to replace the exist ing Court of Cazsation and gave it supervisory authority over the examinin and adjudicating judges, while the Ministry of Justice became essentially the prosecuting arm of the legal system, in addition to continuing to serve as legal advisor to the executive branch.
5. And finally'it goes without saying that the status of the courts
and the law in Vietnam has been greatly influenced by the almost-continual fighting that has ravaged the country since World War II. Not only has the fighting inhibited the development of a large cadre of personnel to staff the courts and to enter the legal profession, it has prevented the creation of new courts in the provinces. A war-time economy has siphoned off funds needed by the judicial system and resulted in numerous emergency decrees, often overlapping and un-systematic, adopting severe security measures, in cluding administrative detention. Also, the powers of the military courts has been successively enlarged, giving these quick and efficient courts jurisdiction over civilians accused of a broadly-defined category of national security offenses. As a result, a substantial part of the country's administration of criminal,law is in the hands of the military and outside the regular courts.
6 STUDY OF EXISTING SYSTEM __.__
The purpose of the study was to undertake to describe, evaluate,
and recommend changes in the existing 'system of courts in the Republic of
Vietnam. However, in undertaking this study, it has been borne in mind
that the structure of the Vietnamese judicial system is a dynamic, con
stantly changing one. For that reason, the term "existing system of
courts" has been given an interpretation other than merely that system
which is, but'also that system which is becoming. For that reason when
the system is described, it is assumed that the existing projets prepared
by the Ministry of Justice will have been adopted at some point, which can
be called the present in Vietnam. An attempt is made to evaluate the sys
tem of Vietnamese administration of justice, not only on the basis of what
is in operation now, but also on the basis of what is scheduled to become operative in the future. Of course, this does cause some distortion, but it is felt that this would be less distortion than freezing the survey of
the administration of justice in Vietnam, especially the court system, at a point where no one contemplates that the system remain.
In undertaking this survey, Louisiana State University naturally encountered several problems. One of the major difficulties was the in completeness of statistics, mainly because of war-time conditions. The statistics given in this study vary as to source. They are not always in ternally consistent. Sometimes the whole is greater or less than the sum of its parts- as given in the statistics. Though we have reproduced the statistics as they were furnished to us by Vietnamese officials and nationals,
7, we have not attempted to force them onto a Procrustean bed to make them self-consistenL. It is felt to do so would be to dist -tthe picture.
The basic structure of the Vietnamese courts is rather simple. At the bottom of the level 'are the courts of limited jurisdiction, such as Courts. of Peace. There are very few Courts of Peace functioning as such in Vietnam and very little time is devoted to them. Instead different officials in the area act as judges of peace wherever it is necessary.
For most, practical purposes the bottom of the ladder, the first rung, is the court of general jurisdiction. Courts of general jurisdiction in recent times have been of two types: Courts of Peace with Extended Jurisdiction, and Courts of First Instance. During the course of this project decrees issued by both the Supreme Court and the executive declared the conversion of Courts of Peace with Extended L'risdiction into Courts of First Instance. The structure of Courts of Peace with Extended Juris diction, however, has been described here because the conversion has not been made immediately effective.
Basically'the difference between these two types of courts is not in the subject matter overzwhich 'they have jurisdiction, but rather in the procedure by which they handle the subject matter. As the recent conversion would indicate, the ideal type of court of general jurisdiction is a Court of First Instance. A Court of First Instance is manned by .three magistrates: the presiding judge, the examining judge, and the prosecutor. Prior to the creation of the new Vietnamese Supreme Court, all
8 three'of these magistrates were deemed judges.
The Court of Peace with Extended Jurisdiction differs from
the Court of First Instance in-that it is manned, in-.principle, only
by a single magistrate or judge. There is no division of functions be
tween magistrates, although there may be more than a single magistrate
assigned to a particular area. The difference has some further func
tional impact brought about by the existance of certain special courts.
The term "special courts" is used in many senses in Vietnam.
The primary type of institution to which it refers is a Court of First
Instance utilizing a particular type of procedure. For example,
there are House Lease Courts, Labor Courts, Juvenile Courts, etc.
Occasionally, the term refers to special institutions that do con
stitute separate courts such as the Montagnard Custom Courts, the
Land Reform Courts or the Pension Courts. All these types of special.
courts will be discussed as well as Courts of First Instance proper ' -,
those courts with general jurisdiction.
In the Courts of Peace with Extended Jurisdiction, since the
functions of three magistrates are cumulated, one single magistrate serves
as prosecutor, examiner, and trier. Although this system may have functioned well before the division of the Vietnamese judicial system into prosecut ing and trying branches, it has proved to be conceptually inconsistent with the separation of the judiciary proper from the control of the Ministry
of Justice and its relocation under the Superme Court, with the retention
of the prosecuting branch under the control of the Ministry of Justice.
Problems relating to this change will be discussed in the report.
Over most of the special courts and the Courts of First Instance, there sits a Court of Appeal. There are two Courts of Appeal in Vietnam: one situated at Hue, the other in Saigon. The Court of Appeal has juris diction both as trier of fact and trier of law -- there exists a double degr de jurisdiction. The meaning of this principle will be examined in the report. The.Court of Appeal also has certain functions in controlling the bar which will be discussed in the report. At the apex of the judicial pyramid as it exists in Vietnam today is the Supreme Court. Formerly there were parallel systems of administrative and regular judicial courts which each had their separate "supreme court". The old Cour de Cassation (Court of Cassation) had jurisdiction only over the judicial system as it has been desdribed above. In addition, there was a Conseil de d'Etat (Council of
State) which served as the "supreme court" for the administrative court system. At present there is a separate Administrative Court and there still is a Conseil de d'Etat, but the ultimate power of review is by the Supreme
Court -- the parallel structure that formerly existed has been broken.
The Supreme Court does not try matters of fact as do the Courts
10 of Appeal but restricts its review to questions of law. In reviewing
questions of law the SupremeCourt generally has the jurisdiction and
follows the procedures of the old Cour de Cassation in regular judicial
matters. Thus, the Court reviews decisions not on grounds of fact but
only on special limited grounds of errors specifird in a petition for
review for pourvoi. In addition, the Supreme 'ourt today has the im
portant function of interpreting and deciding constitutional issues as well as certain subsidiary non-judicial functions which will be explained in place.
ii COURTS OF GENERAL JURISDICTION
Jurisdiction
Territorial Jurisdiction
The current aim of the Republic of Vietnam ±s to establish one functioning Court of First Instance for each province. However, a shortage
of manpower has allowed the staffing of only eleven such courts in the
entire country as of June 30, 1969. In twenty provinces there exists as courts of general jurisdiction the Courts of Peace with Extended Juris diction. In some provinces, there are no courts of general jurisdiction. The gap in the administration of justice in the latter provinces is filled
by various devices. Courts of general jurisdiction in one province are sometimes given temporary jurisdiction over provinces without any. District
Chiefs function as justices of the peace. In some areas of the highlands
the gap is largely filled by Montagnard Custom Courts. As of January 14,
1970 the Supreme Court was in the process of creating two new Courts of First Instance, one in Binh Tuy and the other in Gia Dinh Province.
The plan contemplated for the Court of First Instance in Gia Dinh Province illustrates that the Vietnamese commitment to having a Court
of First Instance in every province is not absolute, but that a flexible attitude toward the creation of such courts may be taken.
Gia Dinh Province completely surrounds Saigon. The Court of First Instance for-that province was to be located in the provincial capital of of Gia Dinh in its western part. As Saigon would be a more convenient forum
12 for parts of eastern Gia Dinh, the plan called for the eastern part to remain under the jurisdiction of the Saigon Court of First Instance.
There does not appear to be any strong sense of provincial identity that would compel providing each province with its own court. The provincial divisions of Vietnam are based on former French administra tive divisions which do not necessarily reflect local ties or the presence of discrete, homogeneous groups. The Republic of Vietnam from 1961 to 1968 created nine new provinces from parts of existing provinces and abolished one existing province by allocating its territory to neighboring provinces. With this lack of attachment to local divisions, it should be possible to have a single court, or at least a single judicial staff, to serve more than a single province where its population is too small to
justify a full-time court.
A major difficulty with the concept of providing each province with its own Court of First Instance is that there are many provinces with such low populations that a court would probably not have enough business to keep its personnel of a court fully occupied. In other provinces there is so much business that there are not enough judges, prosecutors, or lawyers to man the courts. The situation is further complicated by the fact that it is impossible to foresee with any reasonable degree of accuracy what demographic ch'nges will accompany improved -onditions of security. There are some provinces that are so underpopulated as to not require their own courts at present but which may well become repopulated when made more secure. Conversely, there are other provinces, especially the major urban
:13 centers of Vietnam, which are currently overpopulated and suffering
from an over-concentration of judicial business, but which may become less'densely populated as refugees from the countryside return to rural life. Some flexibility needs to be built into the Vietnamese system of
courts of general jurisdiction to allow for such demographic changes.
Temporarily the need for flexibility could he partially met by
an expansion of the mobile court concept. The concept of mobile courts
is somewhat similar to the American notion of "circuit riding courts". This concept has been in Vietnam mainly within the judicial districts of the courts of general jurisdiction. It is well-recognized that courts of general jurisdiction located in provincial capitals are inaccessible to a
large portion of the rural population. To serve the population better, -Courts of First Instance in several provinces go out to the people and conduct trials and transact other judicial business in towns other than the
province cdpital. This practice %as been on a somewhat irregular basis.
However, the structure of the present judicial system does not
allow the transaction of judicial business in the more serious cases during mobile court sessions. The Vietnamese judicial process in civil cases, like that in France, Italy, and other European countries, is quite unlike the Anglo-American concept of trial. The Vietnamese process is extended over a longer period of time involving numerous exchanges of written documents, etc., rather than being centered around an oral hearing. The mobile courts, do not have the facilities for .the filing of necessary documents in trials-: of serious cases; consequently, they do not relieve parties of the
•necessity of making numerous trips to the provincial capital in con
nection with civil cases. At best their sessions only save a party one
trip to the provincial capital that he would have had to make for the
actual hearing of his case, Usually, however, these sessions are only
concerned with the granting of certificates of civil status.
As an example of the workings of a mobile court, in October,
1969, the Court of First Instance of An Giang Province held one mobile
court session in the village of Tan Loc Dong, located in the district of
Thot Not in the countryside. At this session there were 363 cases on the
docket, including 340 applications for court judgments to be used instead
of birth certificates for 1332 children, ten requests for the legitimation
of illegitimate children, one declaration of death, one confirmation of
biographic data, three cases concerning civil matters, and eight cases
that had been postponed for the non-appearance of the petitioner.
The situation described above appears to be fairly typical.
There are, however, some situations in which the mobile court disposes
of more important trials. For example, a mobile court session organized
by the Da Nang Court of First Instance was held April 8, 1970, in the
countryside. At this session the court heard twelve cases among which were at least two penal matters involving the falsification of identification documents and the use of false documents. As another example, one lawyer re ported that while he was practicing in the province of Bien Hoa he represented a defendant at a mobile court session in a fairly important contested matter. However, the lawyer indicated that he did not think the mobile court session was worth the effort since the accused had to make some preliminary trips in connection with the trial into the provincial capital so that he was actually saved very little time or money.
It is clear that mobile court sessions can entertain penal matters, but they usually do not handle such matters. The Presiding Judge of one Court of First Instance indicated that his mobile court sessions were almost exclusively matters-of birth certificates, status records, adoptions, etc. He indicated that occasionally he would hear a case involving a contraven tion in a mobile court session, but seldom would he try a delict or a crime at one of these sessions.
The mobile court sessions are a laudatory attempt on the part of the central government to indicate its concern for the welfare of rural people and to build up confidence in the national judicial system. The mobile court sessions are presently of little, if any, importance so far as their contribution toward the disposition of the judicial caseload is con cerned.
Despite its under-utilization, the mobile court concept does offer the possibility of expansion of the administration of justice to meet the needs of the Vietnamese rural areas. Even if the Supreme Court and the Executive of the Republic of Vietnam execute their plans to establish functioning Courts of First Instance in each province, the government still must face the problem of manning the courts with judicial personnel.
16 Spositive aspect of solving this problem through the temporary
transfer of judges and prosecutors, or through having them travel to
other c6urts for special sessions, is the current Vietnamese practice of
doing this in the trial of crimes (serious offenses). 'These offenses must
be tried before three sitting judges with a prosecutor. Temporary assign
ments for such trials in those Courts of Peace with Extended Jurisdiction
and Courts of First Instance with inadequate number of judges are common.
The territorial jurisdiction and staffing of the courts as of
November 15, 1969, is listed in the following table:
Court- Staffed by Population
Location Pros./Judges Area Served Served
A. COURTS OF FIRST INSTANCE
1. An Giang 1 2 An Giang Province 492,000 (South) 1,903 sq. k=.
2. Ba Xuyen 1 2 Ba Xuyen Province 379,000 (South) 3,745 sq. kn. 3. Bien oa 2 Bien Hoa Province (383,000) (South) 2,407 sq. km.
Long Khanh Province (144,000) 4,414 sq. km.
Binh Tuy Province (57,000) 4,157 sq. km. 10,978 sq. km. 584,000 Court- Staffed by Population Location Pros./Judges Area Served Served
4. Dinh Tdong 1 3 Kien Tuong Province (43,000) 2,123 sq. km.
Dinh Tuong Province (548,000) 1,489 sq. km. 3,612 sq. km. 591,000 5. Phong Dinh 2 .2 Phong Dinh Province (426,000) (South) 1,623 sq. km.
Chuong Thieu Province (249,000) 2,558 sq. km. 4,181 sq. km. 675,000 6. Saigon 19 26 Saigon Prefecture (1,640,000) (South) 58 sq. km.
Gia Dinh Province (1,000,000) 1,574 sq. km. 1,632 sq. km. 2,640,000 7. Vinh Long 1 2 Vinh Long Province 501,000 (South) 920 sq. km. 8. Binh Dinh 1 2 Binh Dinh Province 912,QOO. (Central Low) 9,218 sq. km. 9. Hue 2 2 Hue Municipality 138,000 (Central Low) 16 sq. km. 10. Khanh Hoa 1 3 Khanh Hoa Province 357,000 5,673 sq. km. 11. Quang Nam 2 3 Da Nang Municipality (269,000) (Central Low) 79 sq. ki. Quang Nam Province (618,000) 6,440 sq. n. Quang Tin Province (389,000) 4,959 sq. km. 11,478 sq. km. 1,276,000 Court- Staffed by Population Location Pros./Judges Area Served Served
B. COURTS OF PEACE WITH EXTENDED JURISDICTION
12. An Xuyen 1 An Xuyen Province 235,000 (South) 4,971 sq. km.
13. Bac Lieu Bac Lieu Province 260,000 (South 2,460 sq. km.
14. Ban Me Thout 2 Darlac Province (206,000) (Central High) 10,376 sq. km.
Quang Duc Province (29,000) 6,063 sq. km. 16,439 sq. km. 235,000
15. Binh Duong 2 Binh Duong Province (235,000) (South) 2,167 sq. km.
Binh Long Province Hau Nghia - 1 district
Phoc Long Province -
16. Chau Doc 1 Chau Doc Province 476,000 (South) 2,052 sq. km. 17. Da Lat Da Lat Municipality (83,000)
(Central High) 71 sq. kn.
Lam Dong Province (71,000). 5,107 sq. Ian.
Tuyen Duc Province (91,000) 4,849 sc. . 10,027 sq. kn. 245,000
18. Go Cong 2 Go Cong Province 164,000, (South) 543 sq. km.
19. Kien Giang 2 Kien Giang Province 388,000 (South) 5,268 sq. km.
20. Kien Hoa 2 Kien Hoa Province 582,000 (South) 1,971 sq. km. Court- Staffed by Population Location Pros./Judges Area Served Served 21. Kien Phong 1 Kien Phong Province 303,000 (South) 2,696 sq. km. 22. Long An 2 Long Au Province 334,000 (South) 1,506 sq. km. Hau Nghia - 1 district 23. Phuoc Tuy 2 Phuoc Tuy Province 1073000 (South) 1,931 sq. km. 24. -. Tay Ninh 1 Tay Ninh Province (307,000) (South) 3,845 sq. km. Hau Nghia - 1 district 25. Vinh Binh 1 Vinh Binh Province 379,000 (South) 2,479 sq. km. 26. Binh Thuan 1 Binh Thuan Province 267,000 (Central Low) 4,383 sq. I=. 27. Ninh Thuan 2 Ninh Thuan Province 156,000 (Central Low) 3,431 sq. km. 28. Phu Yen 1 Phu Yen Province 329,000 (Central Low) 5,020 sq. km. 29. Pleiku 2 Pleiku Province (166,000) (Central High) 8,477 sq. km.
Kontum Province (104,000) 10,169 sq. km.
Phu Bon Province (51,000) 4,809 sq. km. 23,455 sq. km. 321,000 30. Quang Ngai 2 Quang Ngai Province 688,000 (Central Low) 5,737 sq-. km. 31. Quang Tri Quang Tri Province 300,000 4,769 sq. kin.
20 Jurisdiction over Subject Matter
Article 16 of the draft of the Codc. of Civil and Commercial
Procedure declares that the Court of First Instance has original and
exclusive jurisdiction in civil or conmziercial cases concerning movable
assets where neither principal demand nor counter-claim exceeds 10,000
piasters ($84.74). It also has unappealable jurisdiction in those cases where the counter-claim does exceed 10,000 piasters but the award of
damages by the court is less than that amount.
Under article 16 the Court of First Instance has appealable juris
diction in all cases where the amount of the principal demand exceeds
10,000 piasters whether this 10,000 piaster amount is based upon a single
claim in the petition or u:pon the accum:ulation of a:1ounts claimed in the
petition. Dy ncg>Itive inference Courts of First instance also have juris
diction over cases involving i.m.ovblcs ".'here jurisdiction is not granted
to some special cour'. Of course, all general ste.,ntof the courts'
jurisdiction are subject to exceptions, such as those provided in the
legislation establishi-ng the special courts, discussed infra.
With respect to penal jurisdiction the situation is somewhat more complicated than "" civil case. Tt is ...... t di.n I be n ,. : .a ... .zo. ,a. 0 d i nl zo s hI be t we en the court's lurisdiction in cases of crimes, and contraventions.
The Courts ot. rst.nstance or thC Courts o leace. wi z h.ndnd 'urisdiction, to ,,r the Cosrts of Peace proper, have urIdiction ovr contraven.ons.
The Court o! First instance sitting as a penal court also has jur-sdiction over
• .i all delicts. However, in the case of crimes, the jurisdiction of the
Court of First Instance sitting as a penal court does not vest until the
Examining Judge has made his examination and it has been reviewed by the Indictment Chamber of the Court of Appeal. This chamber fixes the crime with which the defendant is to be charged and returns the dossier to the Court of First Instance. Thus, in cases of crimes, the most serious class of penal offenses, jurisdiction is indirect in that it does not vest until after the higher court has acted. Of course, special legislation has vested jurisdiction over penal offenses affecting national security in the military courts; the _ gular judiciary is incompetent in those matters. See the discussion on criminal procedure, infra. Organization
. Generally
Although article 77 provides that. every court must be established bylaw with presiding judges and prosecutors professionally qualified, and the basic stzucture of the Vietnamese courts of general jurisdiction is still that established by Ordinance No. 4 of October 18, 1949, as amended and modified, the Constitution of April 1, 1967, provides few specific rules governing the lower court structure. Under the 1949 Ordinance, in principle, the basic court of general. jurisdiction is the Court of First Instance. Such a court is composed of a Prosecutor, an Examining Judge, and a Presiding Judge. Prior to the Vietnamese Constitution of 1967, under Ordinance 'o. 3 of 'arch 29, 1954, and Ordina-nce No. 28 of September 2, 1954, a .;e:.er of the judiciary could be appointed to a Court of First Instance as any one of the three magistrates. The public prosecutor was referred to as a "prosecuting Judge" and deemed as fully a part of the judiciary as the e::. '-.ning and presiding judges; these judges could be and
often were transferred from one :y-e of position Lo another.
However, under article 7S of the Constitution the responsibilities
of the Prcsldin Judges must be clearly distinguished from those of the Prosecutors. 71e form-.r are to make dccisions according to their ccnscience and the law, and arc under the centrol of te Surez. Curt, weras Prose cutors arc to act as guardians of the public .rdr, at ien owa applictAlon of the law, aud are under the control of thv Ministry of Justice.
0CO This separation of the "prosecuting branch" from the "trying branch" in what had formerly been a single system of administ3 ation of justice was perhaps the most important change in the judiciary wrought by the new constitution.
After the adoption of the Constitution, but before the pro mulgation of the law implementing the changes envisioned by it, there was some question as to whether Examining Judges, which are not specifically mentioned in the Constitution, would come under the authority of the Ministry of Justice or the Supreme Court. Some of the functions of the Examining Judge seem more related to the prosecution of offenses; others seem more related to the deciding of cases. The problem was solved under Law No. 07/68 of September 3, 1968, which placed the Examining Judges with in the separated judicial system under-the control of the Supreme Court. However, since that time there has been an attempt to abolish the examining judge positions and to reassign present holders of the positions as trying judges and prosecutors, but this has not been done and the plan has met with strong opposition.
As of May 1, 1967, there were 167 judges in the Republic of Viet nam, including prosecutors. With prosecutors removed from the category of judges proper, there were only 147 judges in Vietnam as of February 19, "1970. The lower number is, of course, attributable to not counting prose cutors as judges, although the number of total magistrates (judges under the Supreme Court plus prosecutors) has actually increased. Attached to this report is a detailed listing of judges and prosecutors serving as of the
latter date.
Unless otherwise specified, the term "judges" used in this report
refers to Presiding Judges and Examining Judges, and not to Prosecutors, I although the Vietnamese continue to rulfer to Prosecutors as Prosecuting Judges. The terminology might not be objectionable in Vietnamese or French. It might even be beneficial in that it would seem to stress the impartiality of t-he Prosecutor more than simply referring to him as a prosecutor. Nonetheless continuing to call Prosecutors "judges" may reflect a hesitancy to implement the new structure demanded b" the Consti tution separating Presiding Judges from Prosecutors. In any event the use of the term is objectionable as leading to potential confusion in English.
The function of the Examining Judge will be examined in some de
tail in connection with the section of this report on Criminal Procedure, since, at present, the Exa:nining Judge has duties only in penal matters. The functioning of the Prosecutor will be consideed primarily in connection with the soction of this report on the Ministry of Justice, the authority
under which he acts.
Thus t1iis section of the report will concern itself primarily with the functioning of the Presidirg Judge -- the judge whose duty it is to decide concreze cases in both civil and criminal -atters. He -:ight be
termed the "rina judge" except for the fact that in civil cases most of the procedure is in writing, protracted ov.r a ;reat deal of time, and the actual hearing of the case bears little resemblance to a "trial" as that term is used in an Anglo-American context. Similarly, much of the fact finding.that is done at the trial of a case of a penal violation in the United States is done at the examining stage in Vietnam, so that the Pre siding Judge cannot be termed a "trial judge" in Vietnam without a
substantial loss of accuracy.
In addition to Courts of First Instance, the Vietnamese have had another type of tribunal functioning for years with the same jurisdiction as a Court of First Instance -- the Courts of Peace with Extended Juris diction provided for by Ordinance No. 4 of October 18, 1949. These tribunals have far outnumbered the Courts of First Instance since they are only staffed by one magistrate and, hence, are easier to organize and supply .than Courts of First Instance with three magistrates. A Court of Peace with Extended Jurisdiction, as established by the 1949 Ordinance, has the same jurisdiction as a Court of First Instance, but it is staffed with a single judge vested with the powers of prosecuting, conducting examinations,
and deciding cases.
The adoption of the Vietnamese Constitution of April 1, 1967, complicated the organization of the judiciary with respect to the Courts of Peace with Extended Jurisdiction -- article 78 requires that the res ponsibilities of the Presiding Judge and the Prosecutor are to be clearly delineated and governed by separate regulations. This provision obviously imposes a difficulty with respect to these tribunals, since it makes a single
;> individual answerable to two higher authorities. As Prosecutor the judge of a Court of Peace with Extended Jurisdiction must fall under the control of the Ministry of Justice to some extent; whereas, as a Presiding Judge and Examining Judge he is subject to the regulatory authority of the
Supreme Court.
Since the adoption of the new Constitution there has been a continuing effort on the part of the Supreme Court and the Ministry of Justice to convert these tribunals into full-fledged Courts of First In
stance in order fully to implement the mandate of article 78. However, several problems arose in connection with the creation of new Courts of
First Instance.
The major problem is, of course, obtaining sufficient manpower to staff the courts. In addition to this difficulty, there was a problem
of who has authority to convert Courts of Peace with Extended Jurisdiction into Courts of First Instance. It can be argued that the authority to create a new court is vested in (1) the legislative branch by article 77 of the Coastitution, (2) in the Executive by virtue of the nature of a Ministry of justice and traditional practice, and the requirement that each court have prosecutors as well as judges, or (3) in the Supreme Court by virtue of its independence and authority to enact regulations to control the lower courts.
The question of whose authority it is to create new Courts of First Instaace was circumvented when the Executive and the Supreme Court both
27 issued separate decrees declaring the conversion of Courts of Peace with
Extended Jurisdiction into Courts of First Instance. However, full
implementation of the decrees is to await the availability of personnel
and o-ther essentials for the operation of a full court. Only the future
can tell what the full effect of the decrees will be. For this reason
an outline of the organization of both types of courts of general juris diction is given herein, as of the summer of 1970, before coimnencement of the implementation of the recent decrees. Courts of First Instance
Perscnnel
Since the personnel available to any particular Court of First
Instance depends upon the workload and area of service of the court. a
survey of court personnel is best organized in termsof the Saigon Court
of First Instance, the other Courts of First Instance in Southern Vietnam,
and the Courts of First Instance in Central Vietnam.
The Court of First Instance at Saigon is a "super class" court with a rather large number of judges. The trying judges include: one
Presiding Judge, three Vice-President Judges, five judges (among them one acts as President Judge of the Labor Court), ten supplemental judges, and one probationary judge.
The Examining Office of this court is divided into ei.ght bureaus and will soon include eleven. This office has one Senior Judge and ten other Examining Judges. The Senior Judge does not have any hierarchic authority over the other Examining Judges; he only represents the Exa-mining
Office and distributes the cases to the other judges or bureaus. The Prose cuting Office includes one Public Prosecutor, seventeen deputy public prosecutors and twenty-four probationary prosecuting attaches now under training.
The Court of Saigon also has in the Office of the Clerk of Court: one chief clerk, two bureau.chiefs, twenty clerks, forty-three,administrative
2 clerks, and eighteen typists. In the Office of the Examining Judge there
is for each bureau one clerk, one administrative clerk, and one typist.
There are four clerks, nineteen administrative clerks, and five typists
in the Office of the Public Prosecutor.
Thus, in the "trying" branch of the Court of First Instance of
Saigon, there are twenty-eight trying judges, thirty-three court clerks,
fifty-three administrative clerks, and forty typists. In the "prosecuting"
branch of the court there are some seventeen "prosecuting judges", one
Chief Public Prosecutor, and twenty-four prosecutor attaches recruited last
year who have not yet completed their on-the-job training.
The other Courts of First Instance of Southern Vietnam generally
include one Presiding Judge, one Examining Judge, and one Public Prosecutor
in the "judges" corps. The Court of First Instance of Dinh Tuong has, in
addition, one subordinate judge. In these seven other courts of Southern
Vietnam there are in the "trying branch" a total of 307 persons. The num
ber of judges at each Court is at least two; clerks of court, from two to
seven; administrati, e clerks, from six to thirteen. The number of typists
at each court is from four to eight. In the "prosecucing" branch there
are a total of 129 persons. Among these are nine clerks, thirty-five ad
ministrative clerks, and sixteen typists.
The "judges" corps of the four Courts of First Instance in Central
Vietnam is allocated in the following manner. The Court of First Instance
of Hue has one Presiding Judge, one Examining Judge and 'one alternate judge,
30 one Public Prosecutor, and two deputy prosecutors.: The courts of Khanh
Hoa and Quang Nam each have one Presiding Judge and one alternate judge,
one Examining Judge, and one Public Prosecutor. The Court of First Instance
of Binh Dinh has one Presiding Judge, one Public Prosecutor, and one
Examining Judge.
The total personnel of the "trying" branch of these courts is
seventy-six. Each court has an average of three judges (the court of
Binh Dinh has two); four to five clerks of court; four to nine administrative
clerk.: and four to five typists. The Court of First Instance of Hue has
the same personnel as the other courts: three judges, four clerks of
court, nine administrative clerks, and five typists.
The "prosecuting" branch of Courts of First Instance in Central
Vietnam has a total personnel of forty-seven. The court of Hue has three
judges, the court of Quang Nam has two; Binh Dinh and Khanh Hoa each have
one judge. The total number of clerks of court is five: one or two for
.each court. Each court has from two to fot.r administrative clerks, and one
typi.st.
Personnel :.%'n enent and Orianization
The non-jud. court pers onel (clerks, administrative clerks,
typists) ar:e sti7. under the statutc over:i-7 civil servants, Ordinance
No. 9 of July, 1950, ,i:m;nded by Ordinance No. 16 of July 1, 1953, govern
ing in cneral Che systcm of govern n.ent ez:ployees. But minor changes have taken place after the institution of the Supreme Court. The lower courts
still retain their former organizational stiructure, but the control of
the Office of the Clerk of Court, previously assigned to the Public
Prosecutor is now in the Presiding Judge.
The Presiding Judge has hierarchial-authority over the other
judges and makes the efficiency reports concerning the work of both judges
and other court personnel under him. The Office of the Clerk of Court is
headed by a chief clerk or a senior clerk acting as chief clerk. The
chief clerk is directly responsible to the Presiding Judge.
Concerning the prosecuting branch, the Pro.ecutor is directly
responsible to the Prosecutor General of the Court of Appeal for the
direction of the Prosecuting Office. The Prosecuting Office is directly
headed by a clerk in charge. While the chief clerks have enjoyed an
additional functional allowance, the clerks in charge of the Prosecuting
Office have not. There has been no official decision governing their status
.and determining their functional allowance.
According to present financial regulations, the funds of the
various ministries earmarked for the functioning of their technical services
in the provinces are assigned to the Province Chief. The same applies to
the court system where funds for the operations of. the court are assigned
to the Province Chief by central agencies based upon the estimates made by
the Presiding Judge or the Public Prosecutor. The manager of such a dele gated budget is the Province Chief; the Presiding Judge or Public Prosecutor is the liquidator. This means that once the expenses are made, the
latter-will sign his name on the bills or thL work order certifying that
the work is completed.
Concerning the prosecuting branch, there are no quarterly dele
gations of funds by the central government to the Public Prosecutor; all
expenses concerning the purchases of materials, office supplies, gas and
fuels, house rentals, etc., are directly paid by the central government
agencies. With regard to house construction or repairs or maintenance of
the court headquarters, funds are delegated by the central government to
the Province Chief to pay for works done by the Reconstruction Service.
The Supreme Court, however, has authorized each court to have a petty cash
fund of 10,000 piasters for minor purchases.
Functioning of the Various Court Offices
The Office of the Court Clerk is under the control of the
Presiding Judge. 3efore im lcmcn":tion of the 1967 Constitution, the con trol of this office, ..;oar .s its resisters, funds, physical evidence, etc., was under the Public Prosecutor.
The organization of the Offices of the Clerk of Court is uniform.
However, according to the irm-portance of the court, its volume of work and the nu-be" of - :..,..... avi1ab;.c, there ar --." : diff rcnces.An idea of the oAOfioitr1 . Offce o the. Cle'i of Court a: the level of
Courts of Ir=t instance can be gleaned from an cxa,:1nation of the Court of
* i,%. First Instance 'of Saigon.
The clerk's office at the Saigon Court of First Instance is divided into two sections and six sub-sections. The Civil Section in cludes four sub-sections: the civil sub-section handling commercial, civil, housing, urgency, labor appeals, separation, divorce, sales, and money sharing affairs; the authentic acts sub-section; the civil status records sub-section; and the accounting sub-section. The Criminal Section includes two sub-sections: the criminal affairs sub-section and the
physical evidence sub-section.
The civil sub-section receives applications and court costs, returns extra court costs to the parties concerned, pays remunerations to the process servers, receives declarations for opposition or appeal of judgments, establishes related dossiers for submission to the clerk office of the Court of Appeal, issues certified copies of judgments, car bon copies and abstracts of judgments, receives pleas and various documents submitted relating to the lawsuits (or returns same to the owners), establishes and keeps the files and court calendar, supervises sales and shares money to parties concerned.
The commercial sub-section receives experts' reports, records medical doctor and pharmacist diplomas, receives reports of seaworthiness of sea vessels, receives declarations for entry in the commercial registers, receives deposits of trademaarks, samples, and models, makes transfers and garnishment of anything, records sales, mortages, and seizures of vessels, receives court costs paid and returns extra money.
The authentic acts sub-section receives applications, collects
court costs concerning same, returns extra money, returns documents after
use, and issues certificates. The civil status sub-section receives
applications for issuance of civil status records, collects costs, issues
civil status abstracts, issues certificates of non-declaration of birth,
death, or marriage, and makes adjustments and corrections of details in
the civil status acts.
The Criminal Section (and its affiliated sub-section) receives
appeals against orders of the Examining Judge, receives appeals against
and motions of opposition to judgments in serious penal cases, receives
statemwnts and collects costs from plaintiffs, issues certified copies of
judgments, carbon copies, and certificates of judgments of delict and
crime.
The physical evidence sub-section receives and returns physical
evidence, files physical evidenlce confiscated or abandoned by o.rncrs with
the registration iervice of Saigon, and handles all accounting relating to
such matters.
The ?'-osccuting Offices of the Courts of First instance are Placed under control c. the Public Prosecutor. If d. -uties are available, the Puhllic
Proccutor shall takc charge of thoe .v.. ticn of '-is ...... nd
control Ohe 5cial cd work of the and other persor.nC of his department. A typical' example for illustrating organization is, again,
the Prosecuting Office of the Court of First Instance of Saigon. This
office is headed by a clerk in charge and staffed by a number of clerks
and administrative employees and typists. It is divided into ihree sections:
Section I in charge of incoming and outgoing mails; Section 1 in charge
of complaints and denunciations; and Section III in charge of the court
calendar for penal affairs.
7he tcvion in charge of complaints and denunciations is headed by a elerk of c urt 3nd staffed by eight administrative employees.
Th@ cle;rk of court ,issists 1-tiPublic Prosecutor or his deputies in taking statements and accL &ani.± them in their inspections of the police cells and prisons. He ma es -:'nthly and periodical reports, makes transmittal slips for foeardLn ceses to the police for supplemeiitary investigations, estabii, ru:,,ons for appearance, drafts orders of prosecution upon orders of the deputy public prosecutor, makes reports of traffic accidents involving allied army personnel, records in the complaiats book decisions made by the court or orders of the Examining Judge concerning each case, etc.
Section III in charge of the court calendar in penal cases es tablishes the calendar for scheduled cases, makes court calendar reports for distributicn to the process-servers, and Lncords the results of each caSe for reporting to the Attorney General and the Ministry of Justice.
The Offices of the Examining Judge in the Courts of First Instance
-b, are placed under command of the Examining Judge and under the overall
conerol of the Presiding Judge. In principle, the Examining Judge is
under the hierarchial authority of the Presiding Judge. But the
Examining Offices are organized somewhat differently from its counter
part offices. An Examining Judge is placed at the head of all these
offices. His own office includes one clerk, one administrative clerk
and one typist. The clerk assists the Examining Judge in making in
terrogations, taking statements, and drafting orders. The administrative
clerk is responsible for incoming and outgoing mails, for the book used
in recording various caseg*, and for establishing summions for appearance.
At the Courts of First Instance in the provinces, the volume of
litigation is smaller than in Saigon; hence, the number of judges and
administrative personnel is sma ller. The organizaticn is much simpler,
and the court is not divided into sections or sub-soctions; but the
functioning and management is in general along the line of the Court of
Saigon.
Management of ?roperties
The quarters of the Courts of First instance are under the management of the Supr:~mc curt. Thc Xinistrv of Justice has responsi bility morc~y o-r thc Ofce. In Saigon, the j"dicial record office i. under :hc naaacment of thelt inic t of Justice. .os: of th
Courtcs of Firs: ..... iv thi and private resi dences allocatcd to thie judges and c'iief clerks. The Court of han" X~oa,
37 with a new building under construction, will soon be expanded. Prior to the institution of the Supreme Court, each Court of First Instance was allocated one government vehicle for common use by the Presiding Judge and the Public Prosecutor. The same regimeremains in force now. Last year, an order was issued by the Supreme Court to assign one additional vehicle to each court for use by the trying branch.
q4) Courts of Peace :with Extended Jurisdiction
Persoanel
For an examination of the personnel of the Courts of Peace
with Extended Jurisdiction, it is easiest to consider this class of
courts as divided intocourts with one judge and courts with two judges.
The.courts with only one judge are the courts of Long Xuyen,
Dalat, Kien Phong, Tay Ninh, Vinh Binh, Binh Thuan, Phu Yen, Quang Tri,
and Qudng Ngai. The prosecuting, examining, and trying functions at these
courts ar assumed concurrently by one judge who wears three hats at the
same time: Presiding Judge, Public Prosecutor, and Examioing Judge. The
principle of separation of powers between these three functions, therefore,
cannot be implemented. However, in order to have a minimum of separation
so as to help the judge keep the activities of his personnel under control,
three separate offices are organized, each to take charge each one of the functions being assumed by the judge: the Court Clerk's Office, the
Examining Office, and the Prosecuting Office.
The Clerk's Office is placed under the direct control of the
Justice of the Peace and is responsible for carrying out his work. This office keeps separate registers, among then the register for incoming and outgoing mails. The Examining Office has a -,!parate personnel roster and also keeps separate registers. The personnel of this office specializes in drafting interrogation reports. The Prosecuting Office (or the Office of the Public Prosecutor) als' has separate personnel and keeps separate
registers.. An Administrative Clerk iz in charge of'this office. He
specializes in drafting reports pertaining to the work of the Public
Prosecutor, interrogation of offenders involved in cases of flagrant
delicts, and entering complaints in the case register.
The Justice of the Peace operates concurrently in the capacity
of the Examining Judge, of the Public Prosecutor, or of the Presiding Judge
depending on the nature of each case. When he has to sign his name in any
report, he must mention clearly whether he is acting as Examining Judge,
Public Prosecutor, or Trying Judge. When acting as Prosecutor in cases
involving, for example, exhumation of buried bodies, temporary releases
of important offenders in important cases, or prosecution of the top
local administrative officials, the judge must consult with the Attorney
General of the Court of Appeal who acts in the name of the Republic. The judge must'have the Attorney General's agreement before proceeding.
The Courts of Peace with Extended Jurisdiction with two judges are located at Bac Lieu, Ban Me Thuot, Binh Duong, Go-Cong, Kien Giang,
Kien Hoa, Long An, Phuoc Tuy, Ninh Thuan and Pleiku. At these courts, the
Presiding Judge usually assigns the Assistant Judge the interrogating responsibilities of the Examining Judge. In addition, the Assistant Judge will, in the absence of the Presiding Judge, take over for the latter in presiding over sessions trying delicts.
The personnel of the Courts of Peace with Extended Jurisdiction, like that of the Court of First Instance, include judge(s), court clerks,
administrative clerks, typists, messengers, drivers,* and laborers. Prior
to the institution of the Supreme Court, all magistrates as well as the
various auxiliary personnel operating in the Courts of Peace with Ex
tended Jurisdiction were under the management of the Ministry of Justice.
Sinze its institution, the Supreme Court has controlled the judges and
the personnel of the Offices of the Clerk of Court and Examining Judge.
There-are no "prosecuting judges"; hence the personnel of the Prosecuting
Office are under the control of the Ministry of Justice. Thus, in the
"trying" branch there are only ten courts with two judges; the fourtcen
remaining ones have only one judge each. The total number of persons in
the Court of Peace with Extended Jurisdiction in Southern Vietnam under the
control of the Supreme Court is 205 -- 34 court clerks, 87 administrative
clerks, 63 typists, 14 messengers, 3 drivers, and 4 laborers.
These courts have an average of from twelve to seventeen em
ployees (excluding judges). Each Court has at least two, and perhaps
three, clerks of court. There are from five to seven administrative clerks
at each court. fhe courts of Dalat, Go Cong, and Kien Hoa each have one
driver.
At the Courts of Peace )ith Extended Jurisdiction prior to the
institution of the Supreme Court, there was one low-ranking administrative
clerk in charge of the Prosecuting Office of each court. The situation has now improved, and somc clerks of court, having higher rank, have been assigned to work at the Prosecuting Offices of the Courts of Peace with Extended
41 Jurisdiction.
The pers-nel total of the "prosecu ting" branch of the Courts
of Peace with Extended Jurisdiction in Southern Vietnam is now 74. There
are four Clerks of court, twenty-eight .admitistrative clerks, twenty
three typists, and fifteen messengers. Courts have an average of from
five t.. seven employees in this branch. The courts of Bac Lieu, Binh
Duong, Tay Ninh, and Vinh Binh each have one clerk of court; the other
courts have none. An admission examination has been given by the Minister
of Justice to select forty clerks of court for appointment to the various
Courts o; Peace with Extended Jurisdiction.
The total personnel involved in the conversion of Courts of Peace
with Extended Jurisdiction to Courts of First Instance in Central Vietnam
is as follows. The total personnel of the "trying". branch is fifty-nine:
fourteen clerks of court, twent.-seven administrative.clerks, thirteen
typists, and five mesr-engers. Each court has an average of from two to
four court clerks, four to six administrative clerks, and two to four
typists. The total personnel in different categories in the "prosecuting"
branch is thirty-one: one clerk of court (Quang Ngai), six typists, eight
administrative clerks, five messengers, two drivera (Phu Yen and Binh Thuan),
*and nine laborers. The total personael (administrative clerks and typists)
for an average court is only two or .three.
42 * :Functioning of the Various Court Offices
'The C!erk of Court's Office is in charge of the general ad
ministration of the workload of the Presiding Judge. It is headed by a
chief clerk. However, a career branch for dhief clerks has not yet
been established. The only chief clerks are those whose office dates,
)back to the French regime, and their number is insufficient to serve
all courts in the country. Therefore, at each Court of Peace with Ex
tended Jurisdiction the senior court clerk is appointed acting chief clerk
and is entitled to enjoy an additional allowance.
The chief clerk is responsible for the administration of the
clerk's office, for the court's fund, for the preservation of physical
evidence, and for the copies of the court judgments. He signs and certifies
abstracts of judgments, abstracts of civil status acts, and certified copies
of authentic acts, etc. The chief clerk also communicates with the provin
cial treasury concerning the deposit of court costs and fees paid in advance
by the litigants and money collected as physical evidence. He deals with
the provincial registration service in paying over fees collected for the
registration of court documents, in obtaining receipts at the end of each month, and in turning over the court's monthly revenues to the national budget. He also replies to letters from the public asking for information of any kind.
The chief clerk in usually assisted by from two to three clerks who attend and keep records of the court trials. One is usually responsible
4 for civil trials, another'for penal trials, and one other for the
Examining Office'.if only two clerks are'available the one in'ch'arge
of criminal trials is concurrently responsible for the Examining Office.
Work in the Office of the clerk fs handled by the administrative
clerks as follows. One clerk is in charge of the incoming and'outgoing mails. One is in charge of dossiers and judgments pronounced on civil cases (housing, commercial, labor and others) and appeals made by the litigants. This c.lerk also issues certified copies of the court judgments, abstracts, etc. Another is in charge of all criminal dossiers, including the physical evidence files. He establishes the judicial record form No. 1 (records of the offenders' previous convictions, if any, for attach
ment to the dossiers for trial).
I Another administrative clerk is in charge of the issuance of civil status acts. One is in charge of receiving applications and issuing forms for judicial records forms Nos. 2 and 3. And, finally, another is in charge of the plaintiff's applications (for issuance of judgments in lieu of civil status acts -- death, marriage, birth). There are also a
number of typists.
This distribution may vary slightly depending upon the number of employees available and the number of cases handled by a particular court. In case of a shortage, some employees will do the wirk of others provided the work is of the same nature. For example, the clerk in charge of issuing civil status records may be concurrently charged with the
44 issuance of civil status judgments (in.lieu of: civil status acts). The
clerks in the Examining Office and Prosecation Office are organized similarly.
The Office of the Clerk of Court ht the Court of Peace with
Extended Jurisdiction does not have a separate accounting office. The
accounting is a concurrent responsibility of the.adtainistrative clerk
in charge of civil trials. In courts where the number of administrative
clerks is large, the chief clerk will designate one clerk to be in charge of the accounting.
The employee in charge of receiving applications concerning any
subject matter (civil case, criminal case, etc.) will collect the fees
concerning those applications. The fees or costs include fees paid for
the issuance of legal documents such as certified copies of judgment,
abstracts of civil status records, and bonds paid in civil cases (for
example, a bond of 2,500 piasters is collected for a lawsuit for divorce,
and a bond of 1,000 piasters is collected for other civil cases). These
receipts are to be kept by the chief clerk. According to the financial
regulations the court is never to maintain over 10,000 piasters in cash.
Any money exceeding this amount must be deposited with the provincial treasurer.
Management of the Court Budget and Propertles
In the annual budgets of the Ministry of Justice and of the
Suprea Court, a separate chapter is eararked for the courts. This chapter
45 represents the operational funds of the courts.- According to the present
financial procedure, the Minister is the manager of the budget reserved'..
for his ministry. He is allowed to authorize payment and to liquidate
expenses. The Supreme Court now has an autonomous budget *and the Chief
Justice of the Supreme Court is the budget manager concurrently with the budget obligations officer. The budget of the Ministry of Justice, however,
is under control of the Directorate General of Budget and Foreign Aids so
far as'budgetary expenses are concerned.
All expenses for the recruiting of personnel, the payment of salaries and allowances, the purchase of materials and equipment, for maintenance, etc., are subject to examination by the obligations control officer who is responsible for verifying that the expenses and payments made are in conformity with proper financial procedure. Any violation of pro cedure shall be cause for the dossier to be returned to the Ministry concerned for re-adjustment.
At the Courts of Peace with Extended Jurisdiction, all purchases of materials, office supplies, house rentals, water and electricity fees, postal fees, gas and oil, etc., are made directly by the accounting service of the Ministry of Justice or of the 2upremrie Court. Insofar as building main tenance or reparations and new constructi-,s are concerned, the funds will be delegated to .he local Province Chief. Tt:- Prov..,Lce Chief must forward the construction or maintenance blueprints to the lchc&. reconstruction ser vice for a public invitation to bid and for superviLion of the eventual construction.. Upon completion of construction tbe Province Chief will
order payment, and the Public Prosecutor or the Presiding Judge will be
the liquidator.
At the Courts of Peace with Extended Jurisdiction in Central
Vietnam, in-addition to the payments of salaries made by the central
government, funds will be delegated to the Province'Chief for expenses
such as housing, water and electricity fees, postal fees, purchases of
office supplies, publications, etc. Such a delegation of funds is based
upon the estimates submitted by the courts and revised by the central
government. The delegation is made within the limits of the funds approved
in the budget.
The delegation of funds is made to the Province Chief because, according to the financial procedure, he is the budget manager of the provincial budget and the delegated budget manager of ministries having subordinate services installed in the province. With the courts, therefore, the Province Chief is the budget manager of the delegation of the judicial fund, and the Public Prosecutor or Presiding Judge is the liquidator. The money reserved for the construction and maintenance funds is transferred to the "Hors Budget" Chapter under the responsibility of the local recon struction service. The transfer of the money into such a ch-pter is for the purpose of making a renewal of the funds easier in case the construction
Is not completed the same year. By so doing, the money will not be re turned to the Nacional Budget at the end of the year.
47 The, court properties include public buildings, government vehicles, office-equipment, and furniture. The public buildings of'the Courts'of Peace with Extended Jurisdiction are mostly built on national land and are used as the court headquarters and the private residence of the Presiding Judge. Very few courts have housing quarters for the other personnel. Some Courts of Peace with Extended Jurisdiction, such as those of Long An, Phu Yen, and others, have their offices installed in buildings belonging to the province. :Very few government vehicles are allocated; oniy tw6oor three Judges of the Peace with Extended Jurisdiction
receive them.
With respect to the management of the court properties, article 85 of Law No. 007/68 of September 3, 1968, on the organization of the. Supreme Court provides that court houses, except those which are properties of the prosecuting branch, are under the management of the Supreme Court. In principle, the offices of the Judges of the Peace with Extended Juris diction are under the control of the Supreme Court; the prosecuting branch manages the prosecuting office'located within the court. Auxiliary Personnel
The j'xdges and prosecutors of the courts in the Republic of
Vietnam are assisted in their administration of jtistice by certain
auxiliary personnel. These include notaries, clerks, process servers,
curators, auctioneers, and petition writers for hire.
The notary's office is an institution imported into Vietnam from
France. It h'as been considerably transmuted by the Vietnamese after
achieving independence from France. Under the French regime the notary,
although a public officer, practiced indeperdently. He has now becomq a
civil servant of the government. By Ordinance No. 43 of November 29, 1954,
the notary can be of several grades or ranks and is governed by the general
statute on civil service.- He must pass an admission examination and then
another examination giving him career status. The candidate must, in
principle, have a law degree or a professional diploma issued by a notary
school. lie must, of course, satisfy citizenship requirements, must be of
a certaiii age when commencing his career (from 25 to 35), must be regular
as to his draft status, etc. In addition to a salary, the notary enjoys a
monthly commission of 37. of the fees collected from his operation.
Many of the present notaries were employed during the transitional
period imnediately after the passage of the above-mentioned ordinance. A
transitional period of five years was provided during which a notary could be appointed without having to take any examination if he w;ere a graduate
from a notary school in France, a magistrate or lawyer having at least four years service, or a court clerk or a high-ranking officiaf of the Registration
4S and Land Conservation Office having at least ten years service.
The duties of the notary are those of authenticating documents, keeping original copies of autheniicated documents, and issuing further copies or valid abstracts for legal use., An'authenticated copy is deemed self-proving.
Because of war time conditions there are presently only two offices of notaries in Vietnam, one in Saigon and the other in Can Tho. The notary's office in Saigon is, of course, the more important one and includes four notaries and three probationers. Obviously the notarial pro fession is quite small in Vietnam. Outside the cities in which notaries are established the rural civil authorities have the right to authenticate certificates and agreements.
Of lesser rank but in greater numbers than the notary are the clerks. Like the notary the office of the clerk is an institution imported ,into Vietnam from France at the time of the institution of the Courts of Justice and their French domination. Essentially the same organization was retained after Vietnam regained sovereignty from the French.
The clerk is deemed to be an essential component of a court of justice. It is his duty both to write down statements of the parties before the court and to prepare judgments upon the Instruction of the presiding judge. He is also extremely valuable to the Examining Judge since interro gations of an accused must take place in the presence of the clerk. His signature must accompany that of the Presiding Judge or the Examining Judge,
so as the case may be, for verdicts or reports to be valid,
In addition to the above-mentioned Zunctions, the clerk also keeps
in his office the original copies of all the documents, records, regi'stered
files, dossiers, etc., filed in connection with suits. The clerk is of a
lower civil service category than the notary, and the requirements for his
appointment are less strenuous. He need only have a baccalaureate degree,
have a law degree, or pass the professional-test after having served the
court in some lesser capacity. With the reorganization of the judicial
system the office of the clerk was put under the direction of the judiciary -
formerly its'activities had been supervised by the Prosecutor.
Every Court of First Instance and Court of Peace with Extended
Jurisdiction is required to have an information office. The function of the
information office is limited to the giving of information to the public on
the law and advice on how to proceed; it does not extend to filing suits
or otherwise proceeding beyond the level of information. There is a
conscious effort to avoid giving the type of legal service an attorney is
expected to give. Thus the information bureau is by no means equivalent to
what would be considered in the United States a Legal Aid Society. The
information and services provided by the office are free of cost. Normally
the service is headed by a clerk; it is the clerk who most often provides
the answers to the questions that are asked. Advice is usually of a simpl:
sort. It often consists of telling how to obtain civil status certificates or an abstract of a judgent. The service does handle quite a volume of
5A business, 0'howeversince civil status certificates generally are under its supervision anda great-volume of the court's work consists of providing EUch cetificates,.
The auctioneer is the public qfficer in charge of making public sales and appraising items to be sold. The requirements are minimal and many persons can be appointed without taking the examination, but those who have had no service in any capacity in the court must take an examina tion.
The curator, unlike the other officials discussed above, is not a civil servant but a judicial attorney-in-fact appointed by the court. The Court of First Instance of Saigon, having jurisdiction over all commercial matters, approved on December 7, 1964, a set of regulations governing the status of the curator. The court establishes a list of curators to assist it, especially in commercial cases. To be on the list it is not even
necessary to have a law degree if a candidate has a full baccalaureate degree or has served for three years in an office of a curator or a chief clerk or has been in the civil service for three years before the certifica tion process was instituted.
The curator is in charge of managing and liquidating in cases of bankruptcy or performing in other cases according to the assignment of the court. He can also be assigned by the court to supervise all the accounting, administrations, sequestrations, or controls,.and he may hold accounting records and collect money for third persons. He is, of course, required to.
52 keep records of his'activities.In theory, the curator is not to perform
a number of tasks, ordinarily performed by a lawyer, "directlyor indirectly
regarding any property involved in cases under his .curatorship. He is
prohibited from selling property in any manner but at a public auction C or from requesting an honorarium higher than that officially fixed for him by the court. A number of current curators do not meet the minimal
requirements of the present law, but they are being retained because of the lack of alternative personnel.
The petition writer for hire is authorized solely to draft pe
titions and to charge a fixed price authorized by law. He must keep two
registers: one for recording the date O f the petition he wrote, the name
of the petitioner, and the subject of the petition; and another for reeording
the fees he collects.
Requirements for this profession are minimal.. A candidate must only have no previous police records, a secondary education, a first degree of high school diploma, or a "certificate of law fitness" or equivalent. In addition he must be authorized by the Attorney General of the Court of
Appeal and have his name recorded in the register at the office of the Attorney General, and he must pay a license tax. Like the attorney he must not publicize his profession in any manner. lie is only authorized to post a sign stating his name and the caption "Office of Petition Writer for Hire." He is forbidden to urge directly or indirectly the filing of suits. In addition to the Attorney General, the local public prosecutcr has control over his actions.
53 In addition to the auxiliary personnel-discussed above, the courts are aided by various other personnel such as typists messengers, driverg, laborers, etco. The two most serious'problems with regard to these personnel appear to be (1) the understaffing of prosecutor's offices because of the transfer of the control of court offices to the judiciary, and (2) the general manpower shortage caused by the war.
Upon creation of the Supreme Court it received by statute all of the property than appurtenant to the Courts of Peace with Extended Jurisdiction. There were no prosecutors of these courts to share these facilities; consequently, all of these facilities went to the Supreme Court. But in Courts of First Instance, prosecutors at least retained their share of facilities such as offices, houses, etc..
The problem of obtaining physical facilities for prosecutors, although most extreme in cases of the transformation of Courts of Peace with Extended Jurisdiction into Courts of First Instance, applies throughout the legal system. With so much property vesting in the Supreme Court, there has arisen a great need for new offices and houses for prosecutors which is somewhat difficult to meet at a time when the role of the Vietnamese in the war has been actually expanding.
Another serious problem facing the Vietr:amese court system is the efficient storage of court records. In many courts, under preseat pro cedure, dossiers of completed cases are sent to the chief clerk who has no alternative but to parcel them out to his assistants who store them in their
.54 offices. It is not at all unusual for dossiers to be lost. Records are also exposed to theft and deterioration caused by moistt.re and by insects.
Among other major problems that exist with regard to the pro vinces where courts have not yet been established is the task of finding a building for a court that is not only appropriate, but simply adequate. Adequate facilities for holding court sessions and storing court records must be found before anything further can be done. In addition, the Viet namese deem it essential to provide physical housing for all judges rather than simply paying housing allowances. There is also a great need for modern writing and reproduction equipment. Thes.e needs have scarcely be gun to be met.
In those Courts of First Instance with several sitting judges, there is a First President of the court who gives assignments to other Presiding Judges for manning the various chambers of the court and for heading the numerous sections of the court. In courts where there 's only one sitting judge, he assumes all these activities. In some Cour.s of Peace with Extended Jurisdiction in which there are a Presiding Judge and an assistant, the Presiding Judge divides his work load between him and his assistant with no formal separtion of Zheir functions.
In large courts, such as in Saigmon, all of the judges and prose cutors meet regularly. Meetings at monthly intervals are co.-..on. The purpose of these meetings is for general discussion and consuitation. In those meetings before the court reorganiation the prosecuting Judge would
55 often be given general suggestions about prosecuting a particular type of offense. Whether this is still done has not been determined.
In the normal Court of First Instance, staffed by one Prosecutor, one Examining Judge, and one Presiding Judge, the three magistrates are theoretically equal. In practice, the Presiding Judge usually has more prestige because he usually has more experience and a higher rating. He has a psychological advantage over the Examining Judge and is generally looked to as the leading judge of the court. As a practical matter, the Presiding Judge can force the Examining Judge to-re-investigate a case when
he finds the dossier incomplete.
In most courts the chief clerk normally organizes the docket and proposes the time and date for trial. Usually cases are heard chronolo gically as filed with the clerk, but the Presiding Judge certainly can, and sometimes does, alter this arrangement. Such changes can usually be made at the request of the parties if the Presiding Judge agrees.
The law provides that each judge is to decide cases according to the law and his conscience. He is not to be directed in his judgment by his superior judges. However, Vietnamese judges in courts of general jurisdiction appear to be less independent than judges in t,.e United States. This phenrimenon would seem natural in a society like Vietnam whose tra ditional values place much importance on rank and authority. It is probably the natural consequence of having very young judges at the courts of original jurisdiction.
56 Presently all fines and. court costs collected at a local court become part of the national budget and are sent to the national treasury.. The courts of general jurisdiction must receive their operating budgets out of the autonomous budget of the Supreme Court. They are provided with a very small petty cash fund of about 10,000 piasters per year. However, financial matters are highly centralized for most expenditures. Utilities and maintenance for each court are paid for by the Supreme Court. Office equipment, office supplies, etc., come from the Supreme Court also. The Supreme Court has a personnel and accounting service which provides clerks, secretaries, and assistants and supervises accounting. There'is also a furniture service which provides equipment...,
57 Discipline of Judges
Article 46'of the statute governing the bench provides that any judge whose actions are inconsistent with his capacity, honor, or. function is guilty of a violation of discipline. Article 47 provides for nine possible penalties ranging from a warning to transfer, demotion, suspension, and dismissal. Only the right of issuing a warning may 'be exercised by an agency other than the Supreme Court. The right to warn is vested in the First Presidents of the Courts of Appeal. The remaining punishments must be imposed by the Supreme Court upon consultation with the Judicial Council. When a judge is simultaneously accused of several violations his punishment can only be that of the most serious of them, except that in addition to one of the punishments he may be subject to transfer,.
The law sets forth a procedure for trying charges of violations of discipline which parallels that used in ordinary criminal proceedings. The Supreme Court appoints a judge of a higher rank than the accused to play the role of Examining Hagijtrate; the Supreme Court acts as the Indictment Chamber (or the Court may forward the dossier of the accused to the Council of the Judiciary for it to act as the Indictment Chamber, but the Supreme Court acts as the ultimate decision maker). The accused is guaranteed the basic rights of one accused it.a penal matter; he may consult his dossier-and all related documents, produce witnesses, personally plead his case before the Judicial Council, or ask a lawyer or colleague to plead
Se for him. This system of discipline,. while on the whole inherently sound.
does have one or two features which are extremely objectionable from the
standpoint of the efficient administration'of justice. It is difficult to
seehow the effect of the bad aspects of this law can be erradicated from
the Vietnamese judicial system, even by repeal of the objectionable pro
visions. The most objectionable provision is that which treats transfer'
as a matter of punishment. With the Supreme Court attempting to extend
the rule of law throughout the Republic of Vietnam, even to those un
pacified provinces, it is extremely undesirable that transfer to a different
post should be considered a punishment.
Although the Presiding Judge, the Examining Judge, and the
Prosecutor are deemed to be of equal rank, it appears that the Presiding
Judge is the most important. To some extent such a notion is both un
avoidable and desirable. There must be someone in a multi-judge court to
make decisions. Nevertheless, the lack of prestige that is attached socially
and by the law, even under the draft of the new Code of Criminal Procedure,
to the role of the Examining Judge is unfortunate. The new Code of Criminal
Procedure provides that a judge cannot be required to serve as an Examining
Judge without h!s consent longer than two years.
Given the greater social prestige attached to the office of
Presiding Judge, the inevitable result is that the Examining Judges are the youngest and least experienced of the judiciary. This is unfortunate because
they are also the judges most tempted to violations of discipline. Under
59 Vietnamese law and under European-systems of the administration of crimitial Justice, the dossier prepared by the Examining Judge is the most crucial part of the process of the adjudication of guilt or innocence in penal matters. The younger-judges are those who naturally have had the. least time to be imbued with the importance of the maintenance of high ethical standards in the judiciary. Unfortunately, it appears that as older judges are replaced by younger ones an element of corruption hitherto unknown to the Vietnamese legal system may be entering. At least one incident of bribery was brought 'to'the attention of the persoinnel preparing this report inVietnam,
.
60 Costs of Litigation
Numernus inquiries and conversation3 with lawyers, prosecutors, judges, and high administrative officials failed to yield systematic in formation about fees charged by attorneys. This is a matter subject to negotiation between attorney and client, and it may vary depending upon the type of case, the attorney's ability and reputation, the time involved, and the client's ability to pay. The bar associations have no established minimum or maximum recommended fee schedule, and contingency fees are not allowed. There is no doubt that the fees of attorneys has indeed risen over the last few years, along with the general inflationary trend and the rise in prices of all services, and that lawyers are among the highest paid persons in Vietnamese society, Also, there is no doubt that the cost of attorneys, for the vast maJr.ity of the people, is so high as to be prohibitive. Only the well-to-do can afford to hire legal counsel. This factor accentuates the importance of having appointed counsel in penal proceedings.
Court costs, on the other hand, are by no means excessive and do not seem to be an obstacle to the bringing of actions before the courts.
These costs, for the most part, were established in the 1930's, 1940's and
1950's and have been changed little in recent times. They have not kept pace with the serious war-inspired inflationi.
An elaborate schedule of the varying court costs details the fees to be paid to process servers, to clerks of courts, for registration of documents, etc. , .It is, as might be expected, a general principle that the loser in a civil suit'must pay the court costs for the case. Part of these costs'include a charge referred: to as "retainers of the lawyer"for the party who prevailed; however, this charge assessed to the losing 1
party by no means includes the entire attorney's fee of the opponent.
It is only a small charge based upon'the amotint in dispute.
In addition to court costs proper, there are stamp and registra tion duties charged by the government as a revenue producing device on various categories.of documents, including among many others, documents relating to the conveyance of property. Such documents relating to the ownership and the transfer of ownership of property are not recorded with the court itself, but with a Registration Service; it is that service which collects the registration taxes and stamp duties. The basic statu tory document establishing these charges is the Registration Code of November 16, 1929, adopted by a decree of June 21, 1930, Although there have been subsequent minor changes, the charges made under the ,.ode are not excessive and do not appear to be a serious hindrance to f.he exercise of rights before the courts.
FEES FOR CIVIL AND COMMERCIAL PROCEEDINGS
The tariff of proceedings fees is fixed in Decision of August 31, 1946, as follows:
(1) Fees on civil and co=ercial proceedings (collected by
the court clerk's office):
62 The tariff varies in accordance with the degree of. i
jurisdiction. There are usually two tariffs: one for: the Court of Cassation (n6w, the Supreme Court)and the
Court of Appeal; the other 'is for the Court of First,
Instance.
Article 14 of Decision of August 31, 1946, authorizes the court '
clerks to collect the following remunerations in.the form:
(1) Fees to be recorded in the Court of Court of Courts Cassation - General Daily Book (Column 6 & First of Appeal Instance -(Art. Peace 15 of the Decision).) .(piasters) (piasters) (piasters) Roll entrance fees (Ex parte 22$ 6$ 3$ orders and judgments of ur gency procedure are not subject to this fee). Indexing of Acts and Judgments 0.5 0.5 0.5
- Receipts 0.5 0.5
- Mailing of convocation letters .1.0 1.0 ' 1.0
- Stationaries for each case 15$ 6.0 6.0 recorded in the civil and com mercial roll.
TOTAL 39.00 . 14.00 8.00
(2) Summons and Subpoenas:
- Original copy 4.0' . 25 2$ - Each carbon copy 2$ 1$ 1$
63 (3) (a) Fees and duties concerning
civil and commercial judgments
required to be recorded in the
Register: Drafting & transcribing , 6$ 2$ 2$ Stamps for the Indexing register 3$ 3$ 3$ -Stamps for Registration io$ -10$ 15$ 19$". 16$. 20$. (b) Drafting & transcribing fees
and stamps for other Acts:
(Issuance of original copies
or filing of the Minutes). -Drafting: 6i 2$
- Stamps 'or Indixing Register: 3 . 3$ 9$ 5$ (C) Drafting an' stamps for Adoption Acts: 5$ (d) Drafting and stamps for declara
tions authorizing minors to do com
mercial business or to emancipate: ,
(4) Draftfng and Stamps for auction sale
judgments and reports on the division
of auction sale proceeds:
(a) to be collected on the sale pr-oceeds
and court costs as of the date of sale.
.6.4 (b) On the division of the proceeds made
to the'creditors over their debts paid:
- From 1 to 10,000$ .00 -.(Decision of Aug. 31, 1946) - From 10,000$ to 20,000$: 0.50%
- From 20,001$ upward: 0.25%
(5) Charges fPir reading on place of specifications. of auction sale and surveyor's report: 5$ - Chargee for reading on place documents, writs, reports, agreements on the division -
6 PRINCIPAL REGISTRATION TAXES
Fixed taxes Proportional Nature of the Acts Prine 2/10 taxes Princ 2/10
(1) Court Orders 120$
(2) Judgments:
- Justice of the Peace 60$
- First Instance 240$
Reversal 360$
- Condemnation 3%
(3) Sales of Immovables:
- Conveyance tax 117. •-First transfer 47.
(4) Sale of Shops (Commercial)
- Conveyance of ownership 8%
- First transfer 4%
(5) Sales of ordinary movables: 7.5% -After bankruptcy 1%
- New goods included in a shop
(6) Receipts 05%*
(7) Clerk's Certificates
- Court of Peace 24$ *. First Instance and Appeals 605
(8) 'Administrative bids:
- Bids of contracts between private- 1 20%
(9) Corporations:
Constitution 1%
- Dissolution 240$
(10) Obligations 1.2,.
(11) Appeals
- Act of Appeal 60$
- Conclusive decision 3605
- Preparatory decision 120$
- Affirming decision 2%
(12) -Opening of credit 1.27
(13) Transfer of shares of corporations 2%,
(14) Transfer of claims and subrogation 1.2%, / (15) Auction sale of imovables
- Transfer of ownership 11%
- First transfer 4%
- Declaration of exploi .acion 240$
67 (16) -Auction sale of movables: 5.57
- After bankruptcy 1% " Destroyed or'damaged goods: 1%
(17) Distribution 1%
(18) Hvpothecation
- Constitution 1.2%
- Dissolution 0.5%
(19) Letters
* - Missive letters '"60$
(20) Lease of movables or itmovables 1%
- Transfer of lease 11%
(21) Drafts, bills of exchange, checks 17
(22) Citations 60$
(23) Powers of attorney" 60$"
(24) Unnamed acts 24$
STAMP DUTIES
1) Proportional stamp tax:
- On receipts, invoices: 0.2% (or 0.20 every 100$)
On act of debt (without pledge of immovables, movables or shops): 0.20%. NOTE: Failure to affix stamps shall be cause for a fine of'1% over the
amount and 50$ at the minimum. Insufficiency of stamps shall be cause
for a fine of 1% over the amount dueand at least 50$. - ,
(2) Fixed stamp duty:
- On Judicial Records :: 1$
. - Transportation contracts:,.
- By sea:
(a) Long distance:
Bill of lading (original): 60$ NOTE: No stamps or
(carbon): 15$ insufficient stamps,
fine: 100$
(b) Short distance:
Bill of lading (original):, 20$
(carbon): 5$
- By other means:
(a) By land: 3$
(b) By river: 5$
(c) By air: 20$
Luggage: From 0.20 to 350'
(3) Stamp duties by size of acts: NOTE: No stamps or
- Small size (0.176 x 0.250): 10$ insufficient stamps,
- Medium size (0.25 x 0.352): 20$ fine: 100$
- Large size (0.30 x 0.42): 30
69 (4) Publicity, advertisements:
- Advertsement on normal size
paper (400 sq. cm): 1$
- Ads over 400 sq. cm: 2$ NOTEI No stamps or
- Ads-with frames insufficient stamps,
* (under 400 sq. cm): 2$ fine: 100$
(above 400 sq. cm): 4$
(5) Publicity with lights:
- Normal lights:
First year, each sq. meter 30$
Second & following year:, 15$
- lash lights (each month
and each sq, M): 10$
'70 Litigation Time
Little concrete, specific informa ion is available concerning litigation time -- the time required for the processingof cases from beginning to end through the lower courts in Vietnam.. Consultations with and information from various attorneys and judges indicate, however, that" the litigation process is a lengthy one that needs to be shortened. No
real problem exists with respect to minor penal offenses, the contra ventions and most delicts, other than those unavoidable delays caused by security considerations in a few areas and those caused by delays in
transportation where investigation by the examining judge is involved. The major delays occur with respect to the major criminal offenses (dis
cussed in the section on criminal procedure) and especially with.respect to civil cases.
lA -stimate of the time required to complete litigation in civil cases is difficult to come by -- various estimates from knowledgeable VIctnamese indicate that virtually no ordinary civil proceeding could go to judgment in the lower court in Saigon in less than six months; at least one year would normally be required to process a normal civil action accord ing to ordinary procedure. Many judges indicate that attorneys tend to stretch out the proceedings since the traditional idea is thaL the attorney should govern the pace of litigation. As the Drocedure is almost entirely written and calls for attorneys to alternate in the filing of pleadings un til they are satisfied the case is ready for submission, the attorneys are given the opportunity to work as fast, or as slow, as they like. Although it:is within the power of a presiding judge to expedite the procedure: in civil cases by setting deadlines for the filing of briefs' and f6r the completion of dossiers, judges do not customarily exercise this power. It is not utusual to find many continuances or postponements granted with little difficulty. This results partly because the judges are sufficiently occupied with other cases submitted to them for judg ment that they.have no need to accelerate procedures in order to have work to keep them busy.
It is therefore the general impression that the delays of liti gation are not caused by crowded dockets or the inability of courts to handle cases before them, but that the delays result p-imarily from he
procedure in force and the tendency of attorneys to delay.
Part of the problem with regard to delays in litigation may be attributed to the European type of procedure in force. Since much of what is done orally in the Anglo-American system is done in writing in the European system and in the Vietnamese system there is a tendency (at least in a European system) which seems to be reflected in the Vietnamese system not to have "trials" as they are understood in the Anglo-American sense but to spread out the proceedings step by step over a long period of time. Greater speed could probably be attained by reliance upon an oral pro 'cedure; however, this would complicate the matter of completing dossiers for review upon appeal and would probably necessitate the abandonment of the principle of the double degree of jurisdiction. That principle cannot be maintained in a system where there is a great deal of oral testimony except with the widespread use of verbatim transcriptiou of trial testimony.
72 Vietnam does not have to contend with delays caused by a division of thie legal profession into barristers and solicitors.' But some other de laying factors are involved. Initial delays result from the slow operation of the courts' Record Offices which enter the picture whenever a petition is filed with the court. Having summons issued by this office takes, according to an authoritative article in a Saigon Bar Association publi cation, about five weeks in ordinary matters. This office also is charged with the recordation of judgments and providing certified copies of judg ment, but instead, the usual practice is for an attorney to have a member of his staff make copies of a judgment which are then submitted to the Clerk of Court for authentication, rather than having the Record Office prepare the abstract.
Once a cause is assigned to a judge, he is, in theory, the master of his role and can control all adjournments and delays. Attorneys com plain that some judges may adjourn cases indefinitely, while it may also happen that some cases about which none of the litigants are interested in joining issues are set for official consideration. Quoting from an article by J. Lambert (VersUneProcedure Expeditive, Noi San Luat Su Doan Saigon, issue no. 9 (3d trimester 1968)): (English translation from the original French text)
"In the first place, it is illogical that is a case brought to hearing once, and then again adjourned and again for future dates without anything happening, and everybody -- the judge first in the row -- knows that nothing happens. This system does not mean any thing except that of overloading the calendar and losing time of the tribunal, of the court clerks, and of the lawyers who must be present at the hearing for nothing."
73 Non-Judicial Functions,
The. concept behind the term "non-judicial -function" might better be expressed in the teri "non-adjudicatory function" or "non-litigation
function." The concern'is with those duties assigned to judges and prosecutors which do not directly involve the settlement of disputes between litigants or the application of the penal law. The concern is with what might be termed administrative duties, or extra-judicial duties.
.It is important to distinguish the non-judicial function of the court from the non-judicial functions of the judges and other court personnel. The non-judicial duties performed by judicial personnel who are temporarily detached from the court system are more numerous and dangerous to the court system than those performed by judges as part fE their duties while serving on a court.
A substantial number of qualified judges and prosecutors are assigned, as a matter of necessity, to administrative tasks in the M'inis try of Justice or in the Supreme Court and perform no "judicial" tasks at all. The published list of available judges and prosecutors indicates that a sizeable number of magistrates are involved in such admiaistrative work; one magistrate hap been assigned, for example, to work full t--x-e with the new Law'Center.
Another facet of the problem is the permitting of jud-es by, law, to be temporarily assigned to posts in other branches of the govercme .,
74 Since high-ranking judges are among the most qualified men in the country,
there is a demand for them in high-ranking posts in other ministries
where they would be involved in the work of the executive branch. Often,
such a judge can return to the bench without the loss of his seniority
rights. This transferability may introduce a participation in the
political process that can weaken the indepei.Iaence of the judicial system
because of its connection with the'executive.
A recurrent complaint of Judges is the excessive amount of time
required of the lower courts in granting ce, "*.cates in lieu of birth
certificates and in replacing lost birLh czificates. This function
consumes more court time than any other type of activity, and the mobile
or circuit court sessions are almost exclusively devoted to it. Having
such identity documents in one's possession is vitally important in Viet
nam; the lack of such documents can be cause for suspicion that a person
is a member of the opposition forces. Actually, natters of the registry.
of births, deaths, and marriages is an administrative activity handled
by civil status officers employed by the executive branch. But if births
are not timely registered, or if a person has lost his papers and has moved,
the civil status officer has no power to act. It is the courts alone that
have the power %)issue these required certificates in such cases. Con
sidering the di-ruption caused by the wat, the number of displaced persons
and refugees, and the destruction of documents by war activities in the provinces, the courts' task here looms large. No doubt, the return of
75 stability to Vietnamwill result in fewer cases and the drain on the courts' time will be less substantial; but, at present, it does remain a heavy burden.
In cases concerning birth certificates, the courts hear testi mony from witnesses concerning the applicant's parentage, place of birth, status, etc. Subsequently the certificates are granted. According to some sources, the testimony of witnesses in such cases is often false and the courts are, to a large extent, forced to grant false certificates because of the great number of applications they must process. The situation may be compared to the false testimony used routinely in American courts regarding questions of adulte'ry or other grounds for divorce. However, it is unfortunate to find this kirl of activity by the courts in areas where
the judicial system has its greatest contact with the population. Such practice a would seem to lead to a lack of confidence in the ability of the judiciary to get to the truth of matters.
COher officers of the court are also frequently assigned non judicial duties. For example, prosecutors have a duty to sul -ise deten tion, inspect prisons and jails, and guarantee that all perst.; ed are legally held. This may be thought of as a quasi-judicial activl:ty (somewhat similar to the American practice of granting a wric of habeas corpus) and not objectionable nor particularly time-cons=ing. However, there is another duty imposed upon Prosecutors or upon Judges of Courts of "Peace with Extended Jurisdiction (with the one judge acting in hia cap-a/c
7(3 as Prosecutor) that is objectionable -- the service required of these judges on the province security committee. Established in each province, these committees have the authority to order detention without trial of suspected members of the Viet Cong infrastructure. The Prosecutor is usually the only legally trained member of this committee, and it is usual for this task to occupy much of a Prosecutor's time. Although the presence of a Prosecutor on the committee may actually assist innocent suspects and help to protect them from unduly harsh treatment, nonetheless this advantage is outweighed by the disadvantage of having members of the court system participating in activities so closely related to the executive. The practice is really not so objectionable with regard to Prosecutors, but it is strongly objectionable with regard to Judges of the Courts of Peace with Extended Jurisdiction who serve on these committees
in their capacity as Prosecutor.
As mentioned above, the Prosecutor or the Judge of the Court of Peace with Extended Jurisdiction acting in his capacity as Prosecutor is also assigned the task of supervising all detentions and prison camps within his territorial jurisdiction. The reports from Prosecutors indi cate that they make monthly inspections of the prisons under their juris diction and determine whether persons in custody are properly deLained under existing legal procedures. This supervision includes all types of detention centers, including those operated by the military. The purpose of this task was to insure more humane treatment of prisoners; it appears to be
77, fairly effective. However, insofa is the Prosecutor's participation
is an aspect of control of the legality of detention, it simply does not take very much evidence under present statutes to make the detention
legal; hence, this aspect of their work is of slight value.'
Another time-consuming non-juicial task of'the courts is the requirement that the Presiding Judge act as authenticator of business
records. Account books of a business matter must be signed on every pa.ge by a Presiding Judge before entries are made in those books. There are
other formalities along these lines which commercial law requires the courts to perform. Examples are receiving declarations that a person
is acting as a businessman, receiving registrations of trademarks, etc. Judges in Saigon indicate that this is a time-consuming task involving,
individually, from 2,000 to 3,000 books per year. Some other means of
authenticating books should be found if the government considers this kind of authentication necessary. It is more important to reiuce the number of judges who were devoted to such non-judicial tasks and to have thea
out on the countryside administering justice than to have the dubLous benefits of the proforma authentication of business records.
The chief clerk of a court has the responsibility for maintaining the cassier judiciare, or judicial record of convictions. Tied in With
the identity card 'system, this judicial re~ord is the official record of convictions for delicts and crimes (not contraventions) for every person. This record is kept at the court having jurisdiction over the place of birth of a person. Place of birth is recorded on an individual's identi.ty card, thus enabling each "sentencing court to send a copy of a judgment of conviction to that court where the birth certificate and the judicial
record of conviction is kept. Only convictions are recorded, not-
accusations which do not result in convictions.
Three forms of the record are kept -- No. 1 lists all convictions and is kept permanently at the court. No. 2 is a copy of No. 1 and it can be sent to various government agencies, and in rare cases to individuals, to establish the absence of convictions necessary to establish eligibility for employment, candidacy for election, etc. No. 3 lists only convictions for major offenses; it has a less restricted circulation. This judicial record of convictions will be obtained by an Examining Judge making an investigation of an accused to est:!lish an official record of his prior convictions. Problems of the I lack of registration of births, the movement of refugees, and the destruction of court records during the war result in an uneven implementation of this cassier judiciare system. This activity of the courts does not involve substantial time on the part of judges and prosecutors and is handled by the clerk of court. It is related to the recordation of court judgments and has the advantage of pr,;viding a reliable record of convictions.
79 Participation of Attorneys
The role of the attorney in proceedings before a court of general jurisdictilon varies considerably depending upon whether he is defending an
accused in a penal proceeding or representing an injured party, either as a civil party in a penal matter or'in a civil suit proper.
Although Vietnamese lawyers are well aware:of their responsi bility for insuring the fairness of criminal proceedings their role is
more passive than that of their American counterpart. In Vietnam an
attorney hired to defend an accused person in a penal matter will spend little effort gathering facts; he will undertake.little or no investigation
himself and will seldom, if ever, work through hired investigators. The
factual record during the proceedings will be determined by the original
-dossier prepared by the prosecutor or by the investigations of the
examining judge, in cases referred to the latter. A highly valued right of the attorney is that of reviewing the dossier prepared during an in vestigation. The attorney can exercise some influence over what facts
are to be presented before the court through his participation in the
examining process.
Based upon his review of the dossier, the attorney can send a written plea to the court and need not appear before the court for the trial.
Indigent defendants in the provinces are most frequently defended by appointed lawyers who are unable or unwilling to travel to the provincial courts. These lawyers obtain the dossier on the case from the court, read it, and then send written pleas and briefs with the dossier without ecer having personally seen the defendant.
In cases where a lawyer is employed in a penal matter in urban areas and can be present, the attorney will, often assist the accused in his appearances before the examining judge. While the attorney has no right to question the accused or the witnesses appearing before the examining judge, he can request the magistrate to ask certain questions of the witnesses, which the judge in his discretion often does.
In addition, the attorney performs the valuable cole of request-. ing the examining judge to grant the accused provisional liberty during the investigation. As the period between investigation and trial is relatively long, assistance in this matter can prove quite valuable. The attorney will file a motion to grant the accused provisional liberty and .support it with a brief which will usually be a plea emphasizing the trust worthiness of the accused and the likelihood that he is not guilty. If this request is denied, the attorney will often &.peal the denial of provisional liberty to the Indictment Chamber and write an additional brief.
Based upon information from his client, the attorney will often submit to the examining judge a list of witnesses who can give relevant information about the case. The examining judge is not required to call on any or all of the persons named on that list, but the attorney is frequently
able to convince the examining judge to do so.
Once notified of the completion of the dossier, the attorney will read the file and submit briefs to the examining Judge recommending dispo sition of the case. Once a case has been forwarded to the Indictment Chamber, the attorney has the right to and often does send a written plea to that chamber on the defendant's'behalf. These.briefs submitted by the attorneys are usually argumentative exercises in rhetoric and persuasion -- not unlike an American lawyer's summation to a jury in.acriminal case - rather than analyticalreasons and discussions on hardquestions of law.
By the time of the trial itself the attorney's role has almost been completed. The attorneys will ask few questions. The factual record will have nearly been conclusively determined by that point. The attorney can request the court to ask certain questions of defendants and of wit nesses; sometimes, the'court will allow the attorney to ask these questions directly.
The attorney's chief role' at the trial is in presenting his argument or plea at the conclusion. The attorney has what is considered a most valuable right to say whatever he pleases with immunity from prose cution for any penal offense which his statement might ordinarily constitute. If the factual record is not seriously contested, he will be asking for mercy: perhaps suggesting a proper fine or penalty, perhaps raising questions about the sufficiencylof the record.
To say that the lawyer's role in Vietnamese criminal procedure differs from that of the lawyer's role in American procedure is not to say that the Vietnamese attorney's role in'the system is not substantial. The main function is to assure that the law is correctly applied, which is no small feat and can be a tremendous value to a defendant. A high ranking official in the legal system whose position involved reviewing dossiers of
S2 decided cases to correct, errors of other judges stated that serious errors are not uncommon, even, on.ocCasion, to the point of sentencing defendants to longer prison terms than the law allows. The attorney can and does perform a valuable role in preventing such miscarriages of justice. This assistance of counsel takes on an extra value when it is considered that judges and prosecutors at the trial court level are fre quently the least experienced.
A lawyer may also partin:ipate in a penal mattcr in the role of secondary prosecutor representing a person damagei by an intentional offense or by negligence. Thus, for example, in an automobile accident case, the civil and criminal actions against the defendant may be carried on in one proceeding. It is cheaper, easier, and quicker for a private party to act as a private plaintiff in a penal proceeding than to proceed separately in the civil courts. However, if the accused is acquitted in the penal matter, the judge must declare that he lackc jurisdiction to decide the civil claim and the injured private party must begin again in the civil courts. A suggested change in the draft Code of Criminal Pro cedure would allow the judge in such a case to render judgment on the question of damages even though the accused were not convicted.
There is resistance on the part of members of the bar to appear with clients during police questioning, as permitted under the 1967 Consti tution. Lawyers have traditionally considered it below their station to plead before any body other than a court.
In purely civil cases, Vietnamese lawyers are forbidden by statute
03 from interviewing witnesses who may be called to give testimony in litigatlon; however, the attorney does have a greater control of the factual record than in penal matters. In civil cases the attorneys can employ process servers to question persons having knowledge relevant to the litigation. The attorney delivers written questions to a process server who reads off the list of questions to the witness. In some cases the order of a judge is required before this may be done. The process server then makes a report of the'questioning which has become evidence and has the force of an authentic act. The opposing party, however, has the right to decline to answer. Although in general the attorney cannot communicate with an opponent or with witnesses, he can, of course, speak to the opponent's attorney as far as civil matters are concerned. Where the opposing party has no counsel the attorney is allowed to speak directly to the opponent.
Civil procedure in Vietnam is like'continental civil procedure mainly written with fewer oral pleas and arguments than in penal affairs. Basically, the procedure calls for the plaintiff and defendant to file a series of alternating arguments and briefs (called conclusions) unti2 rbey are satisfied that the case is ready for submission to the courz an the record. There is no one trial in which all the parties and -esse ear. Thus the procedure puts very little faith in the reaen-ien f evidence. Documentary evidence is favored, &ad a -reaa Ze" t information as to what occurred is introduced to the cen: Sy he i of the attorneys rather than r by winesses .... . , possible to have an inquest or haarin to Sather evin= f %'Z these procedures are seldom used.
This type of procedure lends itself to delay, and (as discussed elsewhere) attorneys certainly exploit the possibLlities present in the system. As a practical matter it is considered one .of the attorney's most important roles in representing a civil defendant to simply delay the case. There are several practical means of doing this. When required to file some kind of response to a complaint an attorney can simply include a single point in a plea, forcing his opponent to bear the burden of filing his next plea. When it is his turn again to file a pleading or brief, the attorney can include one more point. Thus he can prolong his case by a multitude of pleas and counter pleas. These delays may be very important to the defendant in many cases, where delay in obtaining a judg ment can mean money in the pocket of the defendant.
There are many functions performed by an American lawyer that are not considered a lawyer's function in Vietnam. For example, the Vietnamese lawyer is not concerned generally with the enforcement of the judgment he obtains from his client. It is generally understood that the services of the attorney end with the obtaining of the judgment. The client is to go to a process server and prosecutor for the enforcement of his judgment. The lack of use of attorneys in enforcing judgments may be one of the reasons for the great difficulty that successful parties have in enforcing their judgments in Vietnam.
There are, of course, many other difficulties, some of them of a political nature, but all inherent in the type of legal system in Vietnam.
85 • 'Much of the diff.culty arises from he court's lack of any civil co1tempt power so that when a-defendant is ordered to pay he can with fair success simply ignore the order. The judgment can only be enforced if the property of the defendant can be found, and the property can frequently be hidden to protect it from being used to satisfy the claim of the successful party-litigant.
This difficulty in enforcing judgments, also present in European civil procedure, could be overcome by the recognition of the court's having-some sort of contempt power. However, it is doubtful that the Vietnamese would recognize a civil contempt power as an inherent power of court as is done in the Anglo-American legal system since for them to do so would violate the basic principle of criminal law of nulla Poena sine lege, -- there should not be any penalty of punishment without an
express statute.
The practicing attorneys in Vietnam have traditionally been, and remain, a conservative group, as is the case with attorneys in most countzies. The economic status of lawyers is uneven -- lawyers with es tablished practices tending to keep and enlarge them while those -without established businesses finding it quite difficult to develo? their practice. Also, many judges and attorneys find the quality of graduates of the Law school entering the profession in recent times to be rather low. There should be no surprise in the disparity in the fees charged 'y various attorneys. Lawyers tend to charge what the market will bear, and no, mint mum or maximum fee schedule is recommended by the bar associaticzs or azy other group. In Vietnam, attorneys play virtually no part in the conveyance
of land and other imnovable property. The court is not the custodian of
documents relatei to rights in immovable prop-rty; rather, this is the
responsibility of the Service de Conservation Fonciete. This service
keeps the land registration books and registers transfezs of ownership,
mortgages, and other rights in immovable property. Two land regime
systems exist in Vietnam -- the older regime and the regime ordained by
the 1925 Land Law. The basic difference between the two regimes is that
the 1925 law requires that all land-related documents be authentic acts
whereas that was not required under the older regime. In both regimes,
the land registration books are arranged according to numbered plots of
land. Documents relating to that plot are recorded in a special section
of the land book along with all other transaction6 dealing with that
particular plot of land, rather than recording by the names of the parties.
Under either regime then, title can be rather securely determined without
recourse to a lengthy title examination. In addition, the 1925 law's
requirement for authentic acts also gives the records of the registration
service a high degree of certainty. For these reasons, attorneys will
seldom be consulted for title opinions. Also, since the notarial pro
fession is separate and apart from the practice of law by attorneys,
lawyers will not be the persons before whom the acts of conveyance will be transacted; instead, this will be done by the separate corps of notaries.
In the area of land use and possession, there also enters a sub stantial element of executive control and discretion. This is because much of the land in Vietnam -- including large blocs in Saigon -- is owned by the government. Rather than-'sell the landto private individuals, the government issues use permits or rents the land to private individuals.
Wnile there is no prohibition agaitist attorneys holding public. office, the bar in Vietnam is not noted for-supplying political leaders. Although many elected officials do hold law degrees, the practicing bar has tended not to furnish many polit-.cal leaders. For example, in the 1970 local elections, only two of the 27 members of the Gia Dinh Province Council were identified as attorneys; none of the 39 members of the Saigon
City Council were identified as attorneys.
Vietnamese lawyers seldom engage in providing legal services that are not court-associated., Seldom are they consulted for :heir advice about business matters or about the best manner of accomplishing some goal and avoiding legal complications, They are usually called in after the fact to assist at trials, and their workload invariably emphasizes penal rather than civil affairs. And while some attorneys engage in political activities for themselves, the legal profession as a whole does not engage to a great extent in what we might call lobbying or influencing the political process. Also, provisions under of lad, attorneys practicing before the courts cannot engage in other occupations, except being professors at a
university-or serving in elected positions.
In Vie.nam, particularly in Saigon, there exists a small corps of persons who are not attorneys but who perform services along the order of what an American would consider a lawyer's work -- work which Vietnanese lawyers can and sometimes will do, but which it is uncomon for them to do since they are seldom engaged unless court action is to be 'aken. These
"legal advisers" are primarily expediters who process applications through
government admintstrative offices or through nJtaries. While to a large
extent they cater to Americans in Vietnam, there are also those who
specialize in performing such services for Vietnamese. For example,
advertisements in the English language newspapers in Saigon by "public
relations" agencies claim to "assist you in solving ybur problems concern
ing: Marriage -- Cohabitation and Birth Certificate, Adoption and Step-
Child recognition, Passport and Extension of Stay." Another agency
specializes in "Marriage and Birth Certificates, Divorce and Paternity
Recognition."
The scope of legal services rendered by attorneys, as discussed before, helps to explain how such a small number of attorneys in the country
(approximately 230 titular lawyers as of February, 1970) can manage the volume of litigation in which they participate. For example, one attortney in a provincial capital near Saigon (one of five attorneys in the province) repo rted handling in 1969 approximately 100 civil cases and 1,000 criminal cases. Aloo, apprentice lawyers (stagiare) are allowed to plead before the courts during their apprenticeship, and handle the bulk of appointmeaiL to defend indigents in penal cases. About 200 apprentices were undergoing training in February, 1970. Still, there is without doubt a pressing need for more attorn..-s in the country, especially in the provinces. The follo;: ing table illustrates the distribution of lawyers in Vietnam. Though the statistics are subject to some error, they are the best that could be obtained. Statistics on Distribution of Attorneys !n Vietnam (19 February 1970 - Comp. .on of Statistics)
I. SAIGON BAR ASSOCIATION
As reported in Saigon Bar Assc. Saigon Ba'- Assc. Rep. of Vietnam figures figures Legal System June May 1967 1968 August 1969 Feb. 17,-1970 Location Reg- Prob. Reg- Prob. Reg. Prob. " Reg. Prob. Saigon 150 24 156 117' Dinh Tuong 1621 1932 182 193. 4 0 5 1 .: 4 " 4 1 (My Phong DinhTho) 3 1 5 2 8 5 8 5 (Can Tho) Vinh Long 2 1 " 2 2 Bien Hoa 2 0 2 0 4 0 5 An Giang 6 5 7 :5 7 .4 0 4 1 4 1 4 1 (Long Xuyen) Long An 1 0 1 0 1 1 Tuyen Duc 3 1 1 0': 4 2- 4 B(Dalat) 2 4 2 .. -. Ba Xuyen -• j. 1* . - . 0..1 ' 0. .11 "0 Kien Ginng 1 1 Tay " 0" Ninh 1... 0 0 Total 171 26 185 132' 191 210 211-. -10 II. ]WE BAR ASSOCIATION -
Thua Thien 6 i---, 6 1 (Hue) Khanh lon 5 2 5.2 (Nha Trang) Quang Nn6 21 6 2 (Da 14ung) Binh Dinh 4 4 -0 (Qut Won) Phu Y") 1 1 0 (Thy 1loa)
Total 22 5 22 5 GRAN!D TOTAL -"'193 3 2 215 'Statistics on Distribution of Attorneys in Vietnam
Explanatory Notes to Chart:
1. Includes nine attorneys listed without any place of practice.
All available indications are that .t!'.ey do practice in Saigon.
2. Includes 57 persons listed with no mention of the location of their practices.
91 ,-COURTS OF APPEAL
Jurisdiction
Area
In the Republic of Vietnam there are two courts of appeal., one established in Saigon and the other in Hue -- intermediate between the courts of first instance and the supreme court. The jurisdiction of the Court of Appeal in Saigon extends over all the southern provinces (formerly CochinChina) and also the provinces of Lam Dong, Tuyen Duc, Dalat (city), Darlac (Ban Me Thuot), and Quang Duc in the highlands of Central Vietnam (formerly Annam). The Court of Appeal at Hue has juris diction over all the provinces in the lowlands of central Vietnam and also over Pleiku, Kontum, and Phu Bon in the highlands.
Although the headquarters of the Courts of Appeal are situated in the two major cities of Saigon and Hue and are described as the Courts of Appeal of those cities, nonetheless'these courts operate as "mobile courts", holding sessions in cities other than their permanent sites. The Saigon Court of Appeal holds sessions in the delta's central city of Can Tho, and in Dalat, the central city of the mountains. The attached table illustrates the territorial jurisdiction of the two courts. (These figures are approximations based upon information obtained from the Vietnamese Bureau of Statistics and are not entirely accurate because of the unsettled state of affairs in Vietnam).
9Z Saigon Court of Appeal
Area Served lopulation Served
1. An Giang Province 4922000. 1903 sq. km. 2. Ba Xuyen Province 379,000 3745 sq. km.
3. Bien Hoa Province 383000 2407 sq. km. 4. Long Khanh Province,' 144,000' 4414 sq. km.
5. Binh Tuy Province' 57,000 4157 sq. km. 6. Kien Tuong Province 43,000 2123 sq. km. 7. Dinh Tuong Province 548,000 1489 sq. km. 8. Phong Dinh Province 426,000. 1623 sq. km.
9. Chuong Thieu Province 249,000 ' 2558 sq. km. 10.' Saigon Prefecture 1,640000 58 sq. km.
11. Gia Dinh Province 1,000,000 1574 sq. km.
12. Con Son Prison 13. Vinh Long Province 501,000 920 sq. km.
14. An Xuyen Province 23500 15. Bac Lieu Province 260,000 2460 sq. km. i6. Darlac Province 206,000 10,376 sq. km. 17. Quang Duc Province' 235,000 16,439 sq. I-rn. 18. Binh Duong Province 235,000 2167 sq. km. 19.1 Binh Long Province -64,300 Hau Nghia - I district 20. Phuoc Long Province .44,300 21. Chau Doc Province 476,000 2052 sq. km. 22. Da Lat Municipality"8.0 71 sq. km. 83000
23. Lam Dong Province 71,000 5107 sq. km;
24. Tuyen Duc Province 91,000 4849 sq. km. 25. Go Cong Province 164,000, 543 sq. km. 26. Kien Giang Province 388,000 5268 sq. km. 27. Kien Hoa Province 582000 1971 sq. km. 28. Kien Phong Province 303,000 2696 sq. km.
29. Long An Province - 334,000 1506 sq. km. Hau Nghia - 1 district 30. Phuoc Tuy Province 107,000 1931 sq. kin.
31. 'Tay Ninh Province 307,000 3845 sq. km. Hau Nghia - I district 32. Vinh Binh Province 379,000 2579 sq. km. Hue Court of Appeal
1. Binh Dinh Province 912,000 9;218 sq. km. 2. Hue Municipality 138,000 16 sq. 3m. 3. Thau Thien Province 634,'000 49,333 sq. km. 4. Khanh Hoa Province 357,009 5673 sq. km. 5. Da Nang Municipality 269,000 79 sq. km. Quang .Nam Province 618,000 6440 sq. km. Quang Tin Province 389,000 4959 sq. km. 6. Binh Thuan Province 267,000 4383 sq. km. 7. Ninh Thuan Province 156,000 3431 sq. km. 8. Phu Yen Province 329,000 5020 sq. km.
9. Pleiku Province 166,006 8477 sq. km. 10. Kontum Province 104,000 10,169 sq. km. 11. Phu Bon Province 321,000 23,455 sq. km. 12. Quang Ngai Province 688,000 5737 sq. km. 13. Quang Tri P:Lovince 300,000 4769 sq. km.
95 Type of Review
The CourtsofAppealhave jurisdiction over both civil and criminal matters, 'but not administrative matters which go to the Conseil' d'Etat. The jurisdictional basis of the Courts of Appeal in civil'cases is found in the Projet of the Code of Civil and Commercial Procedure for the Republic of Vietnam. There have been few changes from past practices, other than with respect to jurisdictional amount. The Courts of Appeal have jurisdiction .to hear appeals in all cases where a statute does not provide otherwise. The provisions of the codes as to when the lower court judgments are conclusive determine the limits of the courts' jurisdiction. Thus in cases tried initially in the Courts of Peace, the Courts of Appeal have jurisdiction to hear appeals in cases involving claims formore than 5,000 piasters -- article 1 of the Projet of the Code of Civil and Com mercial Procedure. Where a Court of First Instance has heard the suit initially, then theCourt of Appeal's jurisdiction extends only to cases involving more than 10,000 piasters -- article 16 of the Projet, The juris dictional amount is 'determined by the same principal claim in those cases where there is a counterclaim. If, for example, plaintiff were claiming 7,000 piasters in a Court of First instance and defendant counterclaims for 4,000 piasters, the amount required for jurisdiction of the Court of Appeal would not be met.' However, if the counterclaim itself exceeds 10,000 piasters as in a case where plaintiff sues for 7,000 piasters and defendant counterclaims forl1 ,000 piasters, then the Court of Appeal would have juris diction.
In criminal cases the Courts of Appeal have jurisdiction at two S6 stages: during the examination and after decision on the merits of the
case. The jurisdiction before trial has two aspects.. First, all orders of the' examining judge can be appealed, with tue exception that under the
new Code of Criminal Procedure the private plaintiff may not appeal an
order granting provisional liberty. Second, in cases of crime, thedossier.,,
must be forwarded to the Indictment Chamber of the Court.
Article 169 of the Projet of the Code of Criminal Procedure gives to the "public prosecutor the right to appeal all orders of the examining judges. Similarly the accused is given by Article 170 of the Projet of
the Code the right to appeal all orders issued by the examining judge,
which means that in cases where the examining judge does recommend prose cution -- a situation analogous to the returning of an indictment or the filing of a bill of information in American law -- the accused can appeal this decision.
There is no article in the proposed Code of Criminal Procedure
limiting the right of appeal in cases of crimes, hence, the general principle that the right of appeal exists in any case where there is no statute ex cluding it applies, and the defendant or the prosecution may appeal at any step in the case.
The function of the Vietnamese Courts of Appeal after trial is somewhat differc.,t from that of the intermediary Courts of Appeal in ehe United States ari is more similar to the Courts of Appeal co be found in Europe in that the purpose of a Court of Appeal in Vietnam is envisioned as providing v new hearing on the facts as well as the law. The Vietnamese have accepted the French principle of the Court of Appeal as having a "double dPgr de juridiction" indicating a belief that the appeal is deemed more.of.a second trial before different.judges and not merely an examina tion df alleged errors of law. In -the course of an appeal to the inter mediary Court of Appeal, unlike the case of cassation,. the court may review both facts and law. The entire iecord is brought before the court for the purpose of the review., It may also order the gathering of additional evidence not before the trial court, though the Courts of 1Appeal seldom so order.
95 Operations
Method of Hearing Appeals
The methods of hearing appeals, to go into operation soon, are set forth in the Projet of the Code of Crimihal Procedure and the Projet of the Code of Civil and Commercial Procedure. Since independence the operation and structure of the Court of Appeal has been governed by Ordinance No. 4 of October 18, 1949. The new law makes little change. The procedures for hearing appeals are very similar in criminal and civil cases, but there are some slight variations.
Article 424 of the Proiet of the Code of Criminal Procedure pro vides that judgments in penal matters can be appealed by the defendant, the public prosecutor, the Attorney General of the Court of Appeal, public agencies if they have a public action (e.g. for damages), and the "plaintiff . . . only for civil interest" (the plaintiff in this case being the civil party joined in the penal action to secure reparation of any injury that he incurred as a victim of a penal offense). Generally the appeal can be taken only within ten days from the day after the judgment is pronounced. However in certain cases where a party is absent the term begins to run only where notice of the judgment is served upon the absentLe. When one party makes an appeal the other parties have an additional period of five days to make their appeals.
There are many exceptions, however, to the general rule of ten days. Appeal of a judgment regarding a request for provisional release must be made within 24 hours. The Qttorney General attached to the Court of Appeal has two months under-article 431 to make his appeal from the date the judg ment is pronounced.
A proper party takes an appeal by making a statement at the office of the clerk of the court that pronounced the judgment. The statement is recorded in a register and signed by the clerk and the appellant or his attorney. If the appellant does not sign the appeal in person, then a power of attorney must be attached to the statement of appeal'. If the appellant is illiterate or unable to sign, it will suffice if the clerk notes the inability in the record and in the statement of appeal.
The procedure for appeal in civil and commercial cases is much the same, with the exception that the delay for taking an appeal is longer and there is a requirement of a posting of a bond., Under article 245 of the Code of Civil and Coimercial Procedure the appeal is taken by making a statement at the office of the clerk of the court that pronounced the judgment.
In the case of a judgment in a contested suit the delay runs thirty days from the date the judgment is pronounced if the parties are present. Parties absent during the pronouncement of judgment are forwarded notice of the judgment. The delay of thirty days runs from the date of formal notice. In the case of defatilt judgments the defaulting party can appeal within 60 days from the date when he can no longer petition for rehearing. By article 243, a defaulting party has thirty days from the date of the judgment to petition for rehearing. If he appeals within 30 days of the
ioo judgment then he is considered to have renounced his right to petition ,for, a rehearing.
One major difference between the procedure in civil or commercial cases and that in criminal cases is that under article 253 of the Code of
Civil and Commercial Procedure the appellant is required to post a bond of 300 piasters.
Disposition of Appeals
In disposing of an appeal the Court of Appeal, in accord with the principle of a double degree of jurisdiction, may review the facts as well as the law applied by the lower court. In general the review of the facts will be made on the basis of the written record of the case compiled by the lower court and forwarded by the clerk within three months of the date of the appeal. The court may order an investigation into new facts under article 265 of the Code of Civil and Commercial Procedure. A party' may petition for another investigation into facts not known to him at the time of the lower court's investigation.
With regard to the procedure to be followed in the disposition of criminal cases article 437 of the Code of Criminal Procedure provides that the procedures applied at the Courts of First Instance shall also apply in the Court of Appeal with several additions. First, the case is judged by the Court of Appeal after the senior judge or associate judge has reported on the case and after the defendant is accorde.d a right to be heard. Second, witnesses can only be heard if the Court of Appeal so orders. Third, the parties are allowed to plead orally before the court, the appellant being. accorded the right to speak first and the appellee last. In cases where 4.o "there is more than one' appellant or appellee the order within each category is fixed by the judge according to article 437.
* The effect of the judgment of the Court of Appeal depends upon
whether its decision in the matter is based upon the facts or the law. In both criminal and civil cases if the Court of Appeal reverses the lower court on the basis of a disagreement as to the facts, then the Court of Appeal's judgment is substituted for that of the lower court. If, hofqever, reversal is based upon the judgment of the Court of Appeal that the lower court has misapplied the law then the Court of Appeal may, in civil cases,
remand the case to the proper lower court. For penal cases article 444 of the Code of Criminal Procedure provides that if the judgment of the Court of First Instance is nullified owing to a lack of proper procedure
the Court of Appeal is to judge the case in its substance. Under articles .440-443 it appears that in all other cases of reversal in penal matters the Court of Appeal abrogates, modifies, or corrects the decision of the lower court and renders its own judgment.
A "definitive" decision of a Court of Appeal is not reviewable on the facts by what is considered an appeal process under Vietnamese law. However, such a definitive judgment may be on the basis of an "appeal" or pourvo: to the Supreme Court for review on the grounds of lack or abuse of jurisdiction, violation or misapplication of law, violation of procedures fixed under penalty of nullity, or contradictions between two judgments pronounced by two different courts trying the same case. The request for review by the Supreme Court is made by filing a statement with the clerk of the Court of Appeal that has rendered the judgment and putting up a bond of 300 piasters. The Clerk ofthe Court of Appeal then has the duty to forward the record of the case to the Supreme Court. Within 15 days of
the receipt of the record the Clerk of the Supreme Court mast send to the
appellant a regi-tered letter acknowledging receipt of the record and
requesting him to submit within three months a plea setting forth the
basis for the request for cassation. When this copy of the plea is sub
mitted the other parties concerned have two months to submit pleas and
replies. Article 312 of the Projet of the Code of Civil and Commercial
Procedure provides that a Court of Cassation (now the Supreme Court)
shall try the case from the legal standpoint and will not consider the
facts. In penal matters cassation is to be governed by article 484 et seq.
of the Projet of the Code of Criminal Procedure. Article 484 sets forth
the same grounds for making a request for review by the Cassation Division
of the Supreme Court as set forth in the Projet of the Code of Civil and
Commercial Procedure. However, the term for making such a request for re view is three days from the date of the definitive judgment of the Court of
Appeal in the case of penal matters rather than the longer period of thirty days in civil and commercial cases. Interestingly enough the Code of
Criminal Procedure, in the case of a request for cassation, requires the posting of a bond just as in civil and commercial cases, although as has been noted above, no such bond is necessary in the case of an appeal in a penal matter from a Court of First Instance to the Court of Appeal.
The delays discussed above are those provided in the ProJets of the respective codes and may not be all-inclusive. At present, different delays are provided for in the case of appeals from special courts -- a fifteen-day delay for appeal from decisions of House Lease Courts. However, this provisionmay be repealed by article 591 of the Code of Civil and Commercial Procedure which provides that all the provisions, laws, and rules in force 'ilch are'inconsisteit,with thrt code shall be abrogated. Organization
Personnel
As of November 15, 1969, there were seventeen judges serving
at the Saigon Court of Appealland four at tle Hue Court of Appeal -- a
total of twenty-one judges on the Courts of Appeal. Although most of
these judges devote full time to the exercise of their judicial function
at the appellant level, it is possible for them to serve on a Court of
First Instance. For example, one of the associate judges of the Court
of Appeal at Hue also serves as a presiding judge over one of the Courts
of First Instance. Thus it is possible (although rare) to provide higher
rank for an experienced judge while at the same time having the judge
assist in manning the judiciary at the level of the Courts of First
Instance. Of course judges who spend most of their time serving as
presiding judges of Courts of First Instance can receive, in addition to
a higher rank, higher pay.
Facilities
The internal structure of the Courts of Appeal is provided by
Ordinance 1o. 4 of October 18, 1949. Article 3 of that law provides that each Court of Appeal is to be composed of two divisions. The first division, "usually presided over by the Chief JusticP" who sits with two other judges is in charge of hearing appeals ir civil and commercial matters decided by
Courts of First Instance or judges of the Courts of Peace with Extended
Jurisdiction. A second division, also sitting with three judges, one of them being named as Court President, is in charge of examining appeals in
i05S penal matters. The second division is further subdivided into two sections,
a "Minor Offense'Section" to hear appeals in cases of delicts or even con
traventions, and a "Grave .Offense Section" to hear appeals in cases of
crimes. This structure is not totally rigid, however, because article 3
does provide that if required the Court of Appeal can meet in general
assembly to organize different provisional sections to examine matters
under the competency of the respective divisions or to establish a vaca tion division.
In addition to the divisions discussed above the Court of Appeal
also has an "Indictment Chamber" whose main function is to hear appeals
against decisions of examining judges at the levei of Courts of First
Instance recommending prosecution or no prosecution.
Administration
The 1949 law also gives certain discretionary powers to tle Chief
Justices of the Courts of Appeal in controlling appointments of judges to
the Courts of First Instance. However these provisions would seem to be no
longer in effect as they are inconsistent with the Supreme Court Law which vests the control over lower courts in the Supreme Court rather than in the
Courts of Appeal. Case Load
The only general statements that can be made-about the case loads of the two Courts of Appeal is that there are far more cases tried by the Saigon Court of Appeal (which has a larger bar and a larger number of Judges sitting on it) than by the Hue Court of Appeal. (See attached tables giving statistics, infa). In January of 1970,.the Chief Justice of the Court of Appeal at Hue, when questioned about the much smaller num ber of cases handled by the Hue Court of Appeal, attributed it to the difficulties involved in traveling to Hue under war time conditions. Al * though the following tables are subject to error, they do reflect the best
data available at present. -Statistics
of.
Saigon Court of Ap .eal
in civil cases
Month Number of cases New cases filed Number of cases Number of cases pending at the during the month disposed of or pending at the beginning of the rejected end of the month month
Civil cases 1323 90 62 1351 Commercial cases 73 2 0 75 House lease 247 13 3 257 Summary PrDcedure 363 19 12 370 2 Civil cases 1351 105 30 1426 Commercial cases 75 0 .2 73 House lease 257 7 3 261 Summary procedure 370 8 2 376 3 Civil cases 1426 106 126 . 1406 Commercial cases 73 7 0 80 House lease 261 11 7 265 Summary procedure 376 12 23 365 4 Civil cases 1406 115 72139672 Commercial cases 80 0 53 77 House lease 265 7 13' 262 Summary 1 procedure 365 21 19 367 5 Civil cases 1396 123 05 14 Commercial 1 1414 cases 77 .. 4 4 77 House lease 262 . 13 11 264 Summary procedure 367 9 * 24 352 6 Civil cases 1414 76 / 77 1413 Commercial ,cases 77 1 1 77 House lease 264 5: 5 264 Suimmary procedure 352 25 9 368
7 Civil cases 1413 105 129 1389 Commercial cases 77 1 7 71 House lease 264 5 13, 256 Summary procedure 368 18 20 366
8 Civil cases 1389 i1 118 1382 Commercial cases 71 5 4 72 House lease 256 4 10 250 Summary procedure 366 30 •21 375
9 Civil cases 1382 99 82 1399 Conmiercial cases 72 5 3 74 House lease 250 18 10 258 Sumnary procedaire 375 20 9 386
10 Civil cases 1399 88 80 1407 Commercial cases 74 2 3 73 House lease 258 4 8 254 Surmmary procedure 386 14 12 368
109 Statistics
of
Saigon Court of Appeal
in civil cases
Month Number of cases New cases filed Number of cases Number of pending at the during the month disposed of or cases pending beginning of the rejected month at the end of the month
1 2006 124 77 2053 2 2053 120 37 2136 3 2136 136 156 2116 4 2116 143 157 2102 5 2102 149 144 2107 6 2107 107 92 2122 7 2122 129 169 2082 8 2082 150 153 2079 9 2079 142 104' 2117 10 2117 108 103 2122
12 TOTAL 10507 637 621 10522 Statistics
of
Saigon Court of Appeal
in civil cases
Month Number of cases New cases filed Number of cases Number of pending at the during the month disposed of or cases pending beginning of the rejected at the end month of the month
1 2139 97 131 2105 2 2105 88 94 2099 3 2099 128 169 2058 4 2058 124 149 2033 5 2033 59 138 1954 6 1954 209 208 1955 7 1955 180 171 1964 8
9
10
12 TOTAL 14343 885 1060 14168
JA Statistics
of
Hue Court of Appea.'
Month Number of cases New cases filed Number of cases Number of pending at the during the month disposed of or cases beginning pending of the rejected at the month end of the month 1
2
.3
4.
5
6
7
8 9.
10
12 270 25 27 266 TOTAL :,,Statistics
of Hue Court of Appeal
Month Number of cases New cases filed Number of cases Number of pending at the during the month disposed of or cases pending beginning of the rejected at the end of month the month
1!
2
3 269 63 71 261
4
5
6
7
8
9
10
12 TOTAL 269 63 71 261 Control of the Bar
In Vietnam there is a rather long tradition of having multiple
bar associations. By Decree Law No. '1/62 of January 8, 19623 the Saigon and Hue Bar Associations were created for the Republic of Vietnam and were granted the exclusive power to regulate within their respective geographical
areas admission to the practice of law, disbarment, arkd other discipline of lawyers. Certain minor amendments concerning admission to the bar were
made byDecree Law No. 025/66 of July 7, 1966.
The number of lawyers practicing in Vietnam is rather low -- only 216 full-fledged lawyers for a population of about 17 million people. At least 11 of the 44 provinces of Vietnam do not have a single lawyer in residence. Although much of the scarcity of lawyers may be blamed upon war-time conditions existing in Vietnam, it appears that it may-also be in large measure due to the degree of independence from the courts which the bar associations have achieved. The responsibility for the admission and supervision of lawyers falls mainly upon the president-and the council of the bar of each Court of Appeal. These are elected by a general assembly of lawyers annually.
Most of the stated conditions for admission to the bar seem to be quite reasonable. A candidate must be'of Vietnamese nationality, be over 21 years old, hold a license en droit or equivalent, and have good conduct. The factor seeming most to limit entering the profession is the requirement of a probationary period of three or four years followed by an examination.
Law No. 1/62 of January 18, 1962, imposed the condition that afterT graduation the candidate must successfully passa test of his capacity for
practicing the profession of law. As no statutory time limit was set upon
the period during which this admission test had to'be taken, the end-of
probation test was abolished, and the lawyer was automatically recognized
as a career or titular lawyer after a normal probationary period of three
or four years. This relatively free entry into the profession was severely
criticized by most lawyers.
In Decree Law No. 25/66 of July 7, 1966, the following was stated
as a condition of admission to the career of lawyer: "The candidate must
be accepted to work as a probationary lawyer at the office of a career law
yer at the probation office of the bar." Nothing was said in this legisla tion about the abolition of the usual end-of-probation examination. As a
restlt the end-cf-probation examination i.as been re-instituted by the bar
associations, though it may be waived in certain cases by the council of
lawyers. Thus the candidate for the position of titular lawyer (the
probationary lawyer as he usually is described) must pass what is generally
considered a rigid written examination given by each bar association at
the end of a three-year apprenticeship. Approximately one-half of the
candidates pass this examination. The rather dismal prospect of passing
this examination after devoting a long period of time to the career of
becoming a lawyer must necessarily restrict entry into the profession.
There are mitigating circumstances to be considered in judging
the knowledge of law possessed by law graduates entering the profession.
LeL,,Ll education has suffered from the separation of the Vietnamese lawyer from French legal material. Instruction at the faculties of law is in Vietnamese. The students generally lack a knowledge of French, and the young lawyers are not trained in research inFrench materials and are not
capabld of using these materials. Materials in Vietnamese on Vietnamese law are sparse, and there are a few persons working to remedy this shortage. Thus it may be argued that in order to remedy the deficiency in the educational process brought about as a result of the separation of the Vietnamese and the French legal systems a lawyer cannot adequately be trained and judged to be qualified unless he has had a probationary period. But the intention that the career lawyer train the probationary in the theory and practice of law is actually carried out only by a small minority since there are only a few lawyers who are considered to be well qualified to give such instruction.
The lawyers seem to be, on the whole, well satisfied with the status quo. They see no need for either more lawyers or revised laws or continuing legal education. The bar is a closed shop -- extremely con servative and opposed to changes in the profession.
How well -the small number of lawyers is serving the country is questionable. In the area of the administration of criminal justice there appears to be an especially serious need for Attorneys. The defen dant is at a serious disadvantage without an attorney since the ability of a judge at a Court of First Instance to handle a case is limited severely by inexperience. Young judges tend to have insufficient knowledge of the law and affairs of men to be able to judge criminal action fairly. The presence of an attorney is essential in criminal cases for a full disclosure of the facts and the law and for a fair trial. The examining magistrate at present does not seem to be fulfilling his theoretical function as the
relentless impartial inquisitor who'gets to the fact. of the case.
There is also a resistance on the part of members of the bar to
appear before police investigatory bodies as they are supposed to do under
the constitutional provisions providing for assistance of counsel during
these investigations. Members of the present bar association consider it
below their position to plead before any body other than a court. With
this attitude, plus the small number of attorneys, the constitutional pro
vision for counsel at the investigatory stage will prove to be largely
illusory.
Admission to the bar associations is conditioned upon the candidates' passing an examination. The probationary lawyer is examined by a board appointed by the Minister of Justice. Four men compose the examination board: The senior judge of the appropriate Court of Appeal, another judge of the Court of Appeal, a representative of the bar association, and a representative of the Pegistration Service (the service that records rights and im.iovable property). Though the Court of Appeal, as such, does not pasb on the qualifications of the applicants, judges of that court do constitute the ruling voice on the examination board. (In case of a tie, the law provides that the vote of the chairman is conclusive.) The senior judge of the Court of Appeal examines the applicants on civil law. The other judge is usually a penal law specialist, and he examines applicants on criminal law and procedure. The representative of the Registration
Service confines his questions to his field, just as #he bar association representative confines his examination to bar rules and practice. In
JiL practice, the representative of the Registration Service is a minor participant in the proceedings. The role played by the judges on the examining board is also. greater than'the role played by the bar associa tion representative.
There is still some uncertainty as to the role the Supreme Court actually plays in the examination procedure, but apparently no moves in the direction of Supreme Court control have been made yet.
The governing board of the bar association has the primary responsi bility and authority for discipline of members of the bar. Appeals from the governing board's decisions in disciplinary matters go to the Court of Appeal where they are heard by the general assembly of judges. The Prosecutor General of the Court of Appeal can also appeal decisions of the bar association on disciplinary matters. Article 40 of Decree Law No. 1/62 of January 8, 1962, (the statute governing the bar association) provided that all decisions of the Courts of Appeal could be appealed to the Court of Cassation. Today this statute may authorize the appeal of disciplinary rulings of the Court of Appeal to the Cassation Division of the Supreme Court.
The general overseer of activities of the bar association on the part of the court system has been, in the past, the Prosecutor General of the Court of Appeal. (Law 1/62 uses the term 'attorney general'. Article 21, for example, permitted him to request that disciplinary measures be taken in certain instances. Article 22 required his permission before police searches of attorneys' offices. These and other such powers were consistent with his position as general overseerof the court. system inladministra tive matters.) With most of his administrative du tis over judges !now transferred to the supreme Court, the exercise of administrative control over the bar associations (as well as over notaries and hussiers) present an uncertainty. These activities regarding discipline take on a
1prosecution" aspect, and final decision is still lodged in the'judiciary itself. Publication of Decisions
* Although judges of the Courts of AppAal are required to render
their judgments in writing, there is currently no systematic publication of decisions of the Courts of Appeal. However, both the Supreme Court and the Ministry of Justice publish legal periodicals containing decisions, articles, legislation, circulars, notices, and other materials. Most of the decisions reported in the law journals are those of the Supreme Court.
The Courts of Appeal do render decisions in all cases stating the facts and the reasons for the decisions. This decision becomes part of the dossier and is the basis for review by cassation. However, there would appear to be no available market which would make possible the commercial publication of decisions of the Courts of Appeal.
The experience Of the Sudan may have some relevance to the problem of establishing a method of publication of'decisions in Vietnam. Prior to 1967 very little was done to preserve the decisions of the courts. In 1926 a digest of the decisions of the Court of Appeal of the Sudan was published covering the period from 1915-1926. The cases chosen were those considered to be of permanent interest. Nothing further was done until 1954 when another digest was published covering the period from 1953 to mid-1954. In 1957 the faculty of law at the University of Khartoum started the Sudan Law Journal. The journal annually published academic articles, comments on decisions and. legislation, as well as reports of cases. The cases reported start on the date on which Sudati achieved its independence. Since that time the faculty of law has published a two-volume set of Sudan Law Reports covering the period 1900-1940 and work is under way on
a publication to cover the period from 1940-1956.
It is doubtful that the demand for decisions of the Sudan was any greater than the demand would be for similar reports in Vietnam. However, the parallel between the two countries is not an exact one since there is a heavy common law tradition in Sudan even though the legal system is a mixed one having portions of English, French, and Egyptian law. THE SUPREME COURT
Jurisdiction
Article 76 of the Constitution of April 1, 1967, of the Republic of Vietnam provides that "independent judicial power is vested in the-
Supreme Court and is exercised by the presiding judges."
The Constitution envisaged a new high court fully independent from fhe executive and legislative branches for the first time and the head of an independent third branch of government. The Supreme Court was granted administrative control over the judiciary and supervisory powers of review in addition to appellate jurisdiction in civil, penal and ad ministrative cases, powers formerly exercised by the Cour de Cassation,
(Court of Cassation) and ihe Conseil d'Etat (Council of State). The jurisdiction-of the court is stated in broad terms by the Constitution:
Article 81
L. The Supreme Court is empowered to
interpret the Constitution, to decide
on the constitutionality of all laws and
decree-laWs, and to decide on the consti
tutionality and legality of decrees,
arretes, and administrative decisions.
2. The Supreme Court is empowered to decide
on the dissolution of a political party
whose policy and activities oppose the,
1207 republican regime.
Article 82
The Supreme Court is empowered to rule on
appeals from lower courts.
Article 83
The Supreme Court has a separate budget and
is empowered to establish regulations govern
ing the judiciary.
It is traditional to fit any discussion of the jurisdiction of
a court into the categories of original and appellate. Although this
procedure is quite satisfactory in describing the jurisdiction even of
those supreme courts where there is vested the power to review the con
stitutionality of statutes or the legality of an administrative action
solely s an incident of concrete litigation, such a mode of descripti.on
is somewhat strained in attempting to fit into those categories the juris
diction of a court having powers of Judicial review previous to the occurrence of litigation (such as is the case in France) or where (as in
Vietnam and Germany) a court may have both the power of judicial review in the abstract previous to a statute's effective date and the power of sub sequent Judicial review incidental to the decision of a concrete case.
Therefore, for purposes of a general discussion of the Jurisdiction of the
Supre-c Court of Vietnam, its Jurisdiction to review zhe constitutionality of laws or decree-laws and the legality or constitutionality of decrees,
123 arretes, and administrative decisions will be first set forth without regard to whether it should be fitted into the category of original or appellate jurisdiction. Then will follow a description of its jurisdiction in. matters of ordinary litigation.
The jurisdiction of the Supreme Court of the Republic of Vietnam to review constitutionality or legality is set forth .n great detail in Law 007/68 governing the organization and operation of the Supreme Codrt. Article 81, Section 1 states two powers of the Supreme Court. The first is to "interpret" the Constitution. The second is to "decide" on the constitutionality of laws and decree-laws and on the constitutionalityand legality of decrees, arretes and administrative decisions. The distinction between interpreting the Constitution and deciding constitutionality is an important one.
The jurisdiction of the Supreme Court to review constitutionality Pr legality is most readily divisible into two categories: (1) that juris diction which can be invoked by any entity recognized as a juridical person under the public or private law of the Republic of Vietnam, and (2) that which can only be invoked by a branch of the government. Under the Consti tution of April 1, 1967, the power of the Supreme Court to declare a law unconstitutional is conceptually distinct from the power of the Court to interpret the Constitution. Articles 63-72 of the Supreme Court Law govern instances of the court's jurisdiction to declare laws or decree-laws un constitutional or to declare decrees, arretes, or administrative decisions illegal; whereas, articles 73 and 74 govern the Court's jurisdiction to interpret the Constitution. Article 63 of the Supreme Court Law in effect grants to every
natural or artificial person the right to initiate a request forjudicial
review'of constitutionality or legality if the implementation of the enacted law, decree-law, arrete, or administrative decision may be harm
ful to his interests. Thig latter condition is modified by the provision that corporate entities governed by public law may be exempt from justi fying personal interests in initiating such a legal action. It is not clear .whether such exemption is automatic, or must be specified by the public law governing the corporate entity in question, or is a matter of judicial discreLion. All that a person need do to initiate such a deter mination is to file at any time a petition directly with the Secretary- General of the Supreme Court. It is not necessary that there be a pending or imminent lawsuit.
An-alternate method for invoking the Court's jurisdiction for judicial review of constitutionality or legality by a 'private person is set forth in article 64 which provides that at any stage of a lawsuit the "plaintiff" (i.e., the claimant, who may well be the defendant) may file an exception requesting that the Supreme Court decide on the constitutionality of the law sought to be applied in his case. To do so he must submit a petition stating the reason for his claim and deposit 5,000 piasters with the clerk of the trying court. The law then provides that immediately after argument by the prosecution (plaintiff) is heard the trying court must de cide during that session whether to submit the exceptional plea to the Supreme
Court.
The trying court under article 66 of the Supreme Court Law has the 1.25 authority to refuse to submit the petition if it finds that the reasons
cited in ,itare "obviously unfounded". In such acage, the party affected
has the right to protest the adverse'decision directly to the Supreme Court within a period of seven days from the date of the decision. The Supreme Court is t1.:n required to pass on the petition. If it agrees with the trial court that reasons cited are "obviously itnfounded," the pcnalty imposed upon the claimant is the forfeiture of the 5,000 piaster bond. However, if it'agrees in whole or in part with the claimant then it pro ceeds to decide the case.
The procedure for the judicial review of legislation upon the petition of private parties is essentially that applied previously by the Constitutional Court of Vietnam before the Constitution of April 1, 1967, with, however, minor modifications. The Supreme Court Law appears to have retained provisions which are not required by the Constitution of April 1, 1967, though certainly not forbidden by it, and which may be more appropriate for a situation where there is a special constitutional court with duties other than to hear constitutional complain.s. These provisions have a grave potentiality of proving to be unduly burdensome for a Supreme Court having many other duties than that of judicial review of the constitutionality of legis7 ation.
Under Law No. 7/60 of December 23, 2960, governing the former con stitutional court, there were three ways in which requests for declarations of the constitutionality of laws, decree-laws, and administrative regulations might reach the Court. First, during any stage of a lawsuit a litigant could
1263 raise an exception requesting a.decision of constitutionality. Second,
any natural, official, or artificial person could request a declaration
of cons.titutionelity by direct petition. Thir4, the Council of State
could request a determination of constitutionality.
Requests for declarations of constitutionality not arising out of
a lawsuit before some court were transmitted first to the Council of State.
Now, such petitions go directly to the Supreme Court. Requests originating
from the Council of State went directly to the Supreme Court under the old
law. However, requests from litigants or private persons were ruled on
initially by the court in which the requests were made or by the Council
of State to wnich the requests were referred. The lower court or the
Council of State had to decide whether or not to transmit the petition
to the Court of Constitutionality Review. The ground for refusing to
transmit such a petition was that still contained in the Vietnamese Con stitution -- the reasons for the petition being obviously unfounded. Under the old procedure if the court (or Council) did not rule that the request by exception was obviously unfounded, the case was transmitted to the Consti tutional Court and the pending lawsuit was suspended. Now it is suspended while transferred to the Supreme Court. If the court ruled that the request was obviously unfounded, then there was provision for allowing the person who requested the judgment to complain directly to the Constitutional Court.
Now there is prc~vision for direct complaint to the Supreme Court.
It has traditionally been an aspect-of "legality control" (or as one would probably express it in English, judicial review of the legality of an administrative ruling or decision)in France that when a question of the
127' legality of an administrative act arose before an ordinary court, that court was required to suspend the civil, criminal, or commercial litiga tion add refer the matter to the administrative courts for decision since the question was one of public law beyond the competence of the-ordinary courts. The Vietnamese system of the concrete review of the consti tutionality .f laws and other quasi-statutory orders exactly parallels the system of reviewing the legality of decrees, arretes, etc. Hence it seems obvious-that what the Vietnamese originally did in establishing their system of constitutional review'was to extend the French system of the review of the legality of administrative actions one step further
to the review of the constitutionality of all laws.
This system, although it may function well where the court to which a matter is referred for decision is a specialized court concerned solely with administrative matters in the case of "legality control" (or constitutional matters in the case of 'the judicial review of the consti tutionality of laws), nonetheless has severe disadvantages when made appli cable to a court having jurisdiction over many matters. The easy access to review in the court which such a system provides is a positive factor whei the reviewing court has no business other than to decide the type of matter referred to it. In such cases the volume of business may be so low that the delay of the ordinary litigation'is not serious. However, when the courts to which such matters are referred.have the duty of decid ing much more than constitutional or administrative matters very easy access to these courts can prove to be an undue burden. Although it'might not be obvious at first, the requirement that ordinary.litigation be suspended while the constitutionality of a law is being decided may eventually, as more matters become litigated, pose problems of significant
delays .in the process of ordinary litigation.
The procedure might also be challenged on conceptual grounds in that it appears to reject the concept that the constitution is the supreme law of the land binding all the courts of the country from the lowest to the highest, since the Supreme Court Law permits only the Supreme Court to declare a law'unconstitutional. However, this conceptual objection need not pose serious functional problems. Indeed, th'e concept that only the Supreme Court may declare a law unconstitutional may be one which is re quired by the Vietnamese Constitution. Article 81 (1) of the Constitution does seem to vest this power of constitutional interpretation and judicial review of constitutionality or legality only in the Supreme Court and not
in the judiciary as a whole.
However, there appears to be no language in the Constitution which requires the judicial organization of the courts of Vietnam to be set up in such a manner that proceedings must be suspended when a constitutional ob jcction is made by a litigant at any stage of the proceedings. Instead the Supreme Court law could have constitutionally provided that the lower courts would be bouni to apply the Legislation in question in all case.; except those in which it was convinceud that the legislation was unconstitutional, and that in such cases the lower court was then bound to suspend proceedings and refer the matter to the Suprem.e Court, just as ordinary courts must re fer similar cases to Constitutional Courts in the German Federal Republic. The Vietnam.sc Supreme Court Law is in accord with the law of a ntumber of other countries (which have provisions only slightly different from the post-war German model) permitting trying judges to refuse to suspend the proceedings if "the reasons cited are obviously unfounded." By a legitimate interpretation of this provision the lower courts in Vietnam could approach the result attained by colurts in other countries, such as Italy, of not causing undue delay by simply deciding that the reasons are "obviously unfounded" in all cases where the court thinks the law is constitutional. However, the problem of excessive delay cannot be solved by interpretation by lower courts so long as the provision granting the claimant a right to take his case directly to the Supreme Court despite the adverse ruling of the trial court remaips. This provision carries obvious dangers of delay particularly in a war-time country where inflation is endemic and the jeopardy of a 5,000 piaster bond is increasingly in significant.
Reviewing the appellate structure of the Supreme Court there appears to be some possibility that the desired result could be achieved juris prudentially. The Supreme Court could interpret the review by means of exception as a request for an exceptional remedy, denial of which would not carry with it the full force of res adjudicata. By giving a very strict interpretation to the concept of res adjudicata the court could rule that its decision that a claim of unconstitutionality was "obviously unfounded" was not a determinatLon on the issue of constitut.;nality itself but rather on an issue preliminary to the determination of the constitutionality and that disposition of this preliminary issue adversely to the claimant would not preclude reaching the substance of the constitutional issue as a matter on ordinary appeal. However, since ordinary appeals do not go to the full, court but to a chamber and since dispositions of constitutional questions do go to the full court one would end up with anomalous result of having a ruling of the full court overturned by a chamber which would then re convene the full court. Such a procedute would be desirable only if as a matter of course the Supreme Court simply refused to exercise the power granted to it to decide cases brought up by exception and asserted its
power to review them for final decision.
The power of interpretation of the Constitution, a power distinct from that of ruling on the constitutionality of a law under the Vietnamese
Constitution, presents several problems.
It would be well to begin by noting who may invoke the court's jurisdiction to interpret the Constitution. Article 73 of the Supreme Court Law specifies that the President, the Chairman of the Upper House, the Chairman of the Lowe House, one-third of the total number of senators, or one-third of the total number of deputies have the right to request the Supreme Court to interpret the Constitution. Thus, a request for the in terpretation of the Constitution must come from an official government organ
rather than from a private person.
Th'e new Vietna.es_, Legal ystem aptly compares this procedure to that of the con.'zitutional court of the West "erm.;an Federal Republic. The Republic of %'ictnim; appears to have adopted both the Ger-.an .- btrate Normonkontrolle, cr abstra.-r Judicial review, where a governent organ institutes a constitutional proceedin and the konKrete :;ormz:con.rolie, or concrete judicial review, in which judgment on the validity of the application of a particular norm is rendered in a case or controversy.. In The'Federal Constitutional Court in Germany: Scope of Its Juris diction and Procedure, 44 Notre Dame Lawyer 548, 558, Hans Rupp states that a decision of the Constitutional Court of the German Federal Re public in an abstract proceeding "is final and binding on all courts and governmental agencies." However, Rupp's interpretation of the effect of the abstract German proceeding is questionable. According to Wilhem Karl Geck, Judicial Review of Statutes: A Comparative Survey of Present Institutions and Practices, 51 Cornell Law Quarterlv 250, et seq.. a case arose where the President of the German Republic asked the Court for an advisory opinion while almost the same question was pending before one panel of the Court in a concrete case. To avoid divergent results, the Court resolved that its advisory opinion would be binding, not on the President of the Republic, but internally on the panel that had to decide the pending case. The President, who had not wanted to prejudice the con crete case but merely desired advice, withdrew his request. The drama was climaxed by a severe legislative restriction as abstrakte Normenkontrolle.
Turning to the Vietnamese legislation we see that we are pre sented with the same problem faced by the German Constitutional Court of the binding effect of vel non of the interpretation of the Constitution given in the ab'sract proceeding. On the one hand we have the statement of article 76 of the Supreme Court Law that "rulings of the Supreme Court on the interpretation of the Constitution, the unconstitutionality of laws and decree-laws, the unconstitutionality of illegality of decrees, arretes, or
-A. 3 administrative decisions. . are binding and must be published in the Journal of the Republic of Vietnam within a period of fifteen (15) days counting from the d'ate the verdict is announced." However, article 75 of the Supreme Court Law requires that Supreme Court.decisions declaring the unconstitutionality of a law be by agreement of three-quarters of the total number of justices on the Supreme Court in office. There is no such requirement with regard to interpreting the Constitution. Since the law draws a distinction between a decision declaring the unconstitutionality of a law and an interpretation by the Supreme Court it would appear that there is no three-quarter requirement for interpretation. Yet if inter pretation is to be given full binding effect then one faces the paradox that a majority of the Supreme Court may find a law unconstitutional in the abstract whereas a three-quarters vote is required to find it un constitutional in the concrete. Of course the paradox can be resolved by rationalizing the discrepancy between the three-quarters requirement for concrete determination and the mere majority for abstract determina tion of the constitutionality on the ground that it is logical to require a greater agree..,wnt of the Court to hold a law unconstitutional after it has been prc:mulgatcd and the interests of various persons may have been vested than before a law has been promulgated, since there is no great need to protect the mere expectations of people.
Howeve., the best solution would be co interprec the provision of the law stating that the interpretation is binding as merely meaning that it is a dcfinitlve interpretation in the abstract which cannot be reconsidcreJ by the Court, but that the decision is not a binding declara tion as to possibla future concrete litigation. Thus, the interretations - o;-... Ths of the Supreme Court would have the effect of being more nearly advisory opinions and not dispositive of all future concrete litigation. The effect of this would be that a non-binding advisory opinion finding a statute constitutional would n't preclude'subsequent review in a concrete case, nor would the decision have the effect of preventing the statute from coming into effect. The wisdom of a procedure of abstract judicial review of the constitutionality of proposed legislation might be questioned on the grounds that it unnecessarily interjects the Supreme Court of a nation, an institution whose. authority tests i4 large measure upon its being accepted as non-partisan, directly intz the pciliti,al power processes to referee disputes between the logislative aiid exetutive branches of the government. Such an interjection may lead to unnocessxry and unwarranted attacks upon the Court's discharge of its more rugu*4.: jt aicial duties so that, para doxically, instead of strergthenitg the 'Ple of the Supreme Court the abstract ruling on the ccL itucionality of statutes may weaken it.
On the other hand the abstract review of the constitutionality of laws does present some advantages in the Vietnamese context -- the main advantage being the rapidity of decisions on constitutionality. Perhaps instability of political and governmental affairs in Vietnam can be mink mized by quick Supreme Court decisions in these matters. Furthermore the objection that the abstract review interjects the Court too much into politics may be countered by pointing out that the lack of abstract review in the United States has not prevented the United States Supreme Court from heavy involvement in political questions.
The bulk of the Supreme Court's constitutional caseload during its
13 % first year and one-half of existence were matters of constitutional inter
pretation arising under articles 73-74 of the Supreme Court Law, rather
than disputes arising under the Court's power to declare laws un
constitutional. Most of these cases arose upon requests by political
bodies -- particularly the National Assembly -- rather than individuals.
These decisions are collected in the appendix to this report.
Another aspect of the Supreme Court's jurisdiction which may be
classified under the heading of jurisdiction relative to the Constitution
is the jurisdiction of the Supreme Court to decide on the dissolution of
a political party whose policies and activities oppose the republican
regime. This is set forth in article 81 (2) of the Constitution of April 1,
1967. This jurisdiction is reasserted in article 46 of the Supreme Court
Law and is spelled out further in articles 73, 74, 75, 76, and 78, which,
with the exception of the last, deal with the process for abstract inter
pretation of the Constitution. This procedure to'gether with the procedures
for interpretation and decision of constitutional issues is treated in
The New lxe.al SystepublisThed by the i . .Center under the
Scction dealing with Defense of the Cons;::itutlon. Although such a power
may seem stra:nge to ;kmerican eyes, the coacc t that the powr to dissolve
political parties wlho are opposed to the basic con: tutional fr.-ework
of the country is not a novel one in the constituctional law of other nations. . i : indicates that this provision is intended
to be skraila.r to but sxo.c.wha: broader th.n .e c zwarabc po'er of the
COnstituttona.i Court of the Cer.nany eor a blic which in 1959 declared
two Gr..4n political parties u:aonsti.tutional, the Gerr.anneo-Na i Party
1,3 and the Communist Party of Germany. Their dissolution was ordered on the basis of the provision of Article 21, Item 11 of the Constitution which'states that a political party may be dissolved if it is dangerous to the existence of the constitutional, liberal, and domocratic order of the Federal Republic of West Germany.
The Vietnamese Legal Center's publication, however, indicates that the Supreme Court's power to dissolve constitutional parties may not be given so restrained an interpretation an the comparable power given the Constitutional Court of West Germany. The New Legal System notes, "in our country, Article 81 (2) of our Constitution in stipulating the reasons for dissolving a political party does not mention the 'violation of constitutional, liberal, and democratic order' because it may be that the legislators have found it useless: Viet Nam as per its Constitution, is already an anti Communist (sic) country (Article 4) and
any party which advocates Communism is automatically unconstitutional."
The available translation of Article 81 (2) is disturbing. It gives to the Supreme Court power to decide on the dissolution of a political party "whose policies and activities oppose the Republican regime." There are no standards set down for what may be considered a policy or an activity opposed to the Republican regime, and, at least in English, the word regime could be construed to refer to the particular administration in power rather than the basic structure of the State itself. If the equivalent Vietnamese word is subject to such interpretation then the Court may find itself constantly embroiled in the political turmoil of the legiolative branch or the executive branch, and its authority as a neutral arbiter
-i.3;"S considerably diminished. This .latter danger is in addition to that
prestnted by article 54 which directly involves the'Supreme Court in the
duty to rule on the eligibility of presidentir'. and vice-presidential
candidates.
The Supreme Court's appellate jurisdiction is set forth succinctly
in article 82 of the Constitution: "the Supreme Cour.t is empowered to rule
on appeals from lower courts." Article 2 of the Supreme Court Law sets
forth the specific jurisdiction implicit in this grant. The law empowers
the Supreme Court to decide on appeals against definitive judgments passed
by all lower courts, to decide on appeals for re-trial, and to settle con
flicts of jurisdiction among lower courts. The distribution of the exercise
of this jurisdiction among various organs of the Court by articles 80 and 81
will be discussed later. For convenience, however, it should be noted at
this point that jurisdiction in civil end administrative cases under the
Supreme Court Law is exercised by the Cassation Division which must include
at least three sections: a civil section, a criminal section, and an
-administrative section, each of which decides questions in its respective
area of concerti.
The appellate Jurisdiction of the Supreme Court consists first
of the jurisdiction of thl f-tr Court o. Cassation plus the jurisdiction
to hear appeals of administrativc cases w-.hich formerly came under the appellate Juriskdiction of tie Council of State. In order to discuss the appellate Jur.sdictlon of tc Supreme Court fully, Lt is necessary first to describe its internal organl=ation.
137 a. Judicial. For the purpose of hearing cases
the S'preme'Court of the Republic of Vietnam consists
of (1) the General Assembly, composed of all the
Supreme Court justices in office, and (2) two divisions:
the Constitutional Enforcement Division and Cassation
Division. The Court must meet in general assembly to
render constitutional interpretations, to review the
constitutionality or legality of a statute, decree-law, arrete, or administrative act (though not to rule on the
legality of administrative acts as an incident of appeal);
to interpret the Constitution; to rule on the dissolution
of a political party; and to perform various administrative
or nor-judicial functions which will be discussed later.
In cases involving the exercise of its judicial functions
mentioned above the quorum required for convening the general assembly is three-quarters of the total number of Supreme Court justices. However, if the bare quorum is
present in such cases then all must concur in order to
reach a decision declaring the constitutionality of a
law or decree-law or declaring the dissolution of a
political party. Under the Consticution three-quarters of the total number of Supreme Court justices in office must concur before such decisions can be reached. Absent justices may not delegate another to vote in their stead but may for good reason send the Chief Justice their views which are communicated to the justices participating in the General Assembly session before the voting begins;
Decisions of the General Assembly are by secret vote unless
otherwise decided by a majority of tCke Supreme Court justices
present, according to the Supreme Court Internal Regulations.
However, the provision that the decision be by secret vote
must be understood as modified by-and subordinate to article
75 of the Supreme Court Law, which provides that in every
constitutional case those justices in the minority may re
quest that their position be noted in the decision. Thus
the internal regulations of the Supreme Court on the whole
preserve the traditional principle of collegiality, a.lthough
this principle may be departed from in constitutional de
cisions or interpretations. The initial experience of
the Court has been that dissenting opinions are rare, and '
that the vote taker on decisions is not made public.
Article 45 of the Supreme Court Law requires that in
addition to the General Assembly there be a Secretariat, which is concerned with administrative matters; a Consti
tutional Enforcement Division, whose concern is the preliminary reception of requests or petitions for con stitutional review and the conducting of preliminary invest.gations into constitutiunal f.-sues raised; and a
Cassation Division, whose concern is the hearing and decision of appeals from lower courts, including adminis trative courts. The Cassation Division is under the
.139_ supervision of the Chief Justice of the Supreme Court
and must be composed of at least three chambers: a
Civil ,Chamber, a Criminal.Chamber, and an Administrative
Chamber. Each chamber is charged with hearing appeals
in matters of its respective speciil concern and in re
solving jurisdictional controversies. As a result of
the great nu:ber of civil cases reaching the Court, a second Civil Chamber has been formed. The Administrative
Chamber has jurisdiction over appeals from the Conseil
d'Etat, which has appellate jurisdiction over the Adminis
trative Court in addition to some original jurisdiction
of its own. Formerly, the Conseil d'Etat was the highest
court in the administrative court hierarchy, but the
Constitution and Supreme Court Law did not specifically
abolish it (as in the case of the former Court of
Cassation). It remains in part an *ntermediate court
of appeal with respect to the administrative court structure.
An effort is made to prevent the specialization of functions of the judges on the Supreme Court by rotating
the members of the Court between the two divisions and among the three chambers of the Casgation Division. It is expressly provided that in the absence of a Justice assigned to a chamber or divisioa the General Assembly shall designate a substitute. A Supreme Court justice may concurrently assume several functions within the divisions and cham
bers. An additional safeguard against overspecialization or ovtrburdening of' a section is implicit in article 50 of the Supreme Court Internal Regulations provision that there
be at least three chambers, which has been wisely interpreted to permit the Court to establish more than the three chambers if the work to be done requires it, as was the case with
reference to civil matters. The multiplicity of chambers, however, may encourage unwarranted appeals by leading to more unpredictable results. Perhaps the membership of panels and that membership's interpretation of the law will vary frequently. Such may be a danger implicit in any court sitting
in sections.
Although it is not explicitly provided for in the Supreme Court's Internal Regulations there are instances where the en tire Cassation Division sits together. Under article 81 of the Supreme Court Law procedures for appeals formerly in force in the Court of Cassation not explicitly contrary to the pro visions of the new law are to be temporarily applied in the Civil, Criminal, and Ad:7inistrative Chambers 'f the Cassation Division. Article 81 specifies that in cases of re-cassation the C, sation Division of the SuprL..,e Court will sit re-united to make a second and definitive ruling. However, this is only true in iivl and criminal cases where the rules formerly applicable to the Court of Cassation are applied. Since formerly the Council of State's decisions were immediately binding and since the Administrative Chamber of the Cassation
Division of the Supreme Court is th; successor to the
Council of State in such matters, it has been explicitly provided that rulings of the administrative chamber are binding initially and cannot be departed from on remand.
142 Election of Justices
Article 80 of the Constitution sets iorth the basic process of the election of Supreme Court justices very succinctly:
(1) The Supreme Court includes from 9 to 15 justices chosen
by the National Assembly and "appointed" by -the President from
a list of 30 jurists elected by the Association of Judges,
Association of Prosecutors, and the Bar Association.
(2) Justices of the Supreme Court must be judges or lawyers
who have served at least ten years in the Judicial Branch.
(3) The term of office of the justices of the Supreme Court is six years.
(4) The number of electors of the Association of Judges,
Association of Prosecutors, and the Bar Association must be equal.
(5) The organization and regulation of the Supreme Court
shall be prescribed by law.
To this rather simple statement of the process of election, the Supreme Court
Law adds forty to fifty articles -- roughly half or more of the law -- to
tho proccss of ec~ction. Some of these articles are no longer of functional
relevance since they concern the process of transition from the prior system of organl:ation of the Judiciary to the pressent system. However, even the very complex process, established 1by articles 5-41, to implement the simple
provision for tbe composition and election of the judges provided in article 4 of the Supreme Court Law as i4ell as in article 80 of the Consti
tution, presented no major operational problem in the first election and
may not do so in the next.
The basic process of election is easy to describe. The Supreme Court, which now consists of nine justices during this "first phase of
its establishment," is to consist ultimately of fifteen justices chosen by the National Assembly and formally appointed by the President. The choice
is to be made from a list of thirty candidates who are elected by the
Association of Judges, the Association of Prosecutors, and the Bar
Association. Judges, prosecutors and lawyers who meet certain minimum standards are eligible to be candidates for justices of the Supreme Court.
Article 5 provides that they must be Vietnamese citizens by birth or have re-acquired citizenship for at least ten years before the last day of the
-election year. Apparently there is no provision for the eligibility of naturalized citizens. The law requires the candidates to have had at least
ten years of professional experience in the "judicial branch," and to have nct been imprisoned for crimes or delicts other thn ofenses of careless
ness or negligence punishable by less than three montll inl,) oSoent. Nor can the candidr:.es have been punished for bre.,.zh of discij-Ln,, aor demoted in the case of judges, nor barred from practice in the case 42 lawyers. The law also requires that they not have been engaged in any activity opposed to the Republican form of government, "nor pro-Communist neutralistic Acts." The final requirement is that they have their draft status in order.
Article 6 requires the candidates to submit a dossier verifying their eligibility. They must file their applications with an Election
Council not later than 30 days before the election. The function of the
Election Council is to assure that the candidates who have entered are qualified under the terms of the law. The membership of the Council is drawn from all branches of the government including the legislative and executive branches. The Council hears any complaints that may be made against the candidacy of anyone who has submitted his name, and it has the duty to study th3 candidate's dossier on its own to decide whether to approve or reject his candidacy. This decision is made by an absolute majority of the total membership and in the case of a tie the opinion of the Chairman prevails. The decision of the Council is final and unappealable.
The next stage in the selection of justices for the Supreme Court is election by an electorate consisting of 50 judges, 50 prosecutors, and
50 lawyers, each chosen by their respective association. Articles 16, 17 and 18 make it clear that even those jurists uho are not actively partici pating in a branch of the profession, and are therefore not eligible for election, are voters in the association of .hich"m"emethey are a in choosing the 50 electors to which each association is entitled. Each association is rcquired to establish a co:;.itte to organize t he election of the elct:ors fro., its association and to resolve questtons pertaining to the election. After the election of electors the cc-ittees submit the
"-4 names of the electors to the Election Council.' The Council certifies them after time and-publicity provided for any challenges to the
eligibility of the electors.
Each elector has the right to vote for up. to thirty candidates - a maximum of ten from each association. The ten candidates from each group
who receive the most votes will be considered "efected candidates for Justic.es of the Supreme Court." There are, of course, provisions for re solving ties. The Election Council also has supervision and control over this phase of the election process. The Election Council, once it has
established that a valid election has occurred, must transmit the list of the dossiers of the thirty successful nominees to the Secretary of the
Upper House. The two houses then meet in joint session; the nine (or six as the case may be) candidates who receive the highest number of votes are elected justices of the Supreme Court; and the list of justices-elect are
submitted by the Chairman of the Upper House to the President for formal appointment. The election of a Supreme Court Chief Justice is not
covered in the election law, but, rather, in the Internal Regulations of the Supreme Court. The process of his selection is described elsewhere.
Justices are elected for a term of six years. Initially only nine justices were elected in 1968, with provision, however, for the election of six aC~itional justices in 1971 so that the election of the justicles is to be staggered. However, it must be noted that in alternative three-year periods (that is, every six years) an absolute majority (nine) of the Court will be chosen.
In an', case of a vacancy on the Supreme Court whether created
by the expiration of a term of office, death, resignation, moral or
physical incompetence determined by tworthiids of the total number of
the Supreme Court justices in office, or removal from office for treason
or other high crimes, then the Chief Justice has .the duty to notify the
President, the Chairman of the Upper House, and the Chairman of the Lower
House. The National Assembly, in cases other than the expiration of the
term, has three days to choose a replacement from the ranks of the remain
ing justices previously nominated. The justice chosen to fill a vacancy
in such a special selection remains in office only until the expiration of the term of the justice he replaces.
The Supreme Court Law in article 56 specifically recognizes that
Supreme Court justices may run for re-election when their term of office
expires. Thus it is possible that many judges, lawyers, or prosecutors
will complete their careers while serving on the Supreme Court. No pro
vision of the law presently stipulates a pension to be paid upon the
retiremaent of Supreme Court Justices after any,given number of years of
service. Ilowever, it would appear that the Supreme Court has the power to
establish such pensions by virtue of the Court's having an autonorous budget.
As such pensior.- are provided for other . of t1he Judiciary, it would be well to provide the:n for me.-bers of the Supreme Court so that experienced justices will have an additional motivation to run for re-election.
S147 Presently, the basic salary of members of the Supreme Court is 45,000 piasters per month -- the same basic salary as for members of the National Assembly. In addition, allowances of various sorts for the Supreme Court justices total roughly 40,000 piasters pr month, bringing the total monthly income of a Supreme Court justice to approxi mately 85,000 piasters per month. It appears at present that these salaries are adequate, and so long as the notion is maintained that the Supreme Court is the equal of the legislative branch, so that their salaries will continue to be equal to those of the legislators, then their salaries are likely to increase at a rate that will enable thz3 to
remain adequate despite the inflation indemit to Vietnam.
The following table gives a short biographical sketch of each of
.the Justices first elected: Table A Justices of the Supreme Court
Justice Tran Van Linh, First Chief Justice of the Supreme Court (1969), re elected to serve as Chief Justice i'%1971
1. Personal Information: Residence: Saigon. Born: March 25, 1924, at Bien Hoa. Married, five children.
2. Education: Graduated from Law School in 1951 in Saigon (Licencie en droit).
3. Former Positions: Deputy Prosecutor at Saigon Court of First Instance from 1951 to 1953; Prosecutor at My Tho Court of First Instance in 1955; Senior Examining Judge at Saigon Court of First Instance from late 1955 to 1957; Deputy Prosecutor at Saigon Court of First Instance in 1958; Alternate President of Saigon Court of First Instance from 1959 to 1960; Associate Judge of Saigon Court of First Instance from 1961 to 1964; President of Saigon Court of First Instance from 1965 to 1968; Chief Justice of Supreme Court (1969); Chairman of the com'nittee in charge of drafting the Code of Civil and Commercial Procedu ,; Chairman of the co:.:nittce in charge of drafting the status governing the Bench and the Prosecution.
-Justicc Tran Minh Tiet, Chief Justice, 1970.
1. Personal Inform:ation: Residence: Saigon. Born: December 28, 1922, in Hau Nghia. Married, three children.
2. Education: License in Laiw, Saigon Faculty of Law, 1949.
3. Former Po:i ions: Former Justice, Court of Cassation (1967-68). Minister of Justice (1966-67). Ministe: of interior (1965-66). President, Salgon Court of First Instance (1961-65). Justice Trinh Xuan Ngan, Justice of the Supreme Court (also, Professor, Saigon Faculty of Law). .
1. Personal Ir'.rmation: Residence: Saigon. Born: February 20, 1913, in Bac Ninh (North.Vietnam). Married, five children.
2. Education: License in Law, Hanoi Law School, 1938. Doctor in Law, Saigon Law School, 1955.
3. Former Positions: Judge since 1950. President of the C':iminal Section of the Saigon Court of Appeal (1962-68).
Justice Tran Van Liem, Justice of the Supreme Court (also, Professor of Law, University of Saigon).
1. Personal Information: Residence: Saigon. Born: July 24, 1925, in My Tho. Married, three children.
2. Education: License in Law (1951) and Doctorate in Law (1962) from University of Saigon Faculty of Law.
3. Former Positions: Former practicing attorney. Member of the Poard, Saigon Bar Association (1968). Treasurer, Vietnam Association of Comparative Law (since 1964). Member, Co-n-. for drafting decree law organizing the Constituent Assembly (1966). Member, Com. for Drafting Code of Civil Procedure (1965-66).
Justice Nguyen Van Si, Justice of the Supreme Court.
1. Personal Information: Residence: Saigon Born: April 4, 1921, at Tra Vinh. Marri.ed, six children.
.-3Ot 2. Education: Faculty of Law, University of Hanoi, 1935-39. Received Master of Law.
3. Former Positions: Former First President of the Saigon Court of Appeal. Minister of Justice (1955-60). Prosecutor General of the Court of Cassation (1962-68). Former publisher of a weekly legal magazine.
Justice Nguyen An Thong, Justice of the Supreme Court.
1. Personal Information: Residence: Saigon. Born: March 5, 1925, in Gia Dinh Province. 2. Education: License in Law, University of Saigon Faculty of Law, 1950.
3. Former Positions: Former Deputy Prosecutor General, Saigon Court of Appeal (1968); Associate Judge (1967). Min. of Justice (1953-66). Examining Judge, Saigon, Court of First Instance (1951-52).
Justice Mai Van An, Justice of the Supreme Court.
1. Personal Information: Residence: Saigon. Born: November 5, 1921, at Luong-Sa. Married, one child.
2. Education: License in Law, Saigon Faculty of Law, 1950.
3. Former Positions: Former Presiding Judge, Saigon Court of Appeal (1966-68), Associte Judge (1962-66). From 1951-61 served as magistrate, judge, examining magistrate, deputy public prosecutor. Justice Nguyen Mong Bich, Justice of the Supreme Court. 1. Personal Information: Residence: Saigon Born: December 2, 1922, in Hanoi,. North Vietnam., 'Married, five children.
2.. Education: License in Law, Hanoi Law School, 1949.
3. Former Positions: Former Judge Advocate General, Armed Forces of Vietnam (1964-66); Legal Advisor in the Office of the President of Vietnam (1966-68). His military rank was colonel.
Justice Nguyen Van Bien, Justice of the Supreme Court.
. Personal Information: Residence: Saigon. Born: March 30, 1925, in Kien Hoa. Married, five children.
2. Education: 1947-50 - Faculty of Law - License in Law.
3. Former Positions: Former Director of Cabinet in the Ministry of Justice and Chairman of Chamber, Saigon Court of Appeal. From 1950 to 1967, he served as Deputy Public Prosecutor, investigating Judge, Chief Judge of District Court, Associate Judge of Court of Appeal, Public Prosecutor of the Saigon Court. Member (1964-6)6 of Corz....tee for drafting Code of Penal Procedure. Member of Committee for dtaft ing status law of the Constituent Assembly (1965). Xember of the Army Force and People Council of Vietnam (1965-67).
15i.e Organization -- Administrative
The burden of actually administering the Supreme Court is divided
between the Secretariat, or the Supreme Court office, and the General
Assembly. It is the General Assembly's function to elect members of the
Supreme Court to offices within the Secretariat, including the election of
the Chief Justice who has the major administrative responsibility. Article
27 of the Supreme Court's Internal Regulations states in general terms
that it is the duty of the General Assembly to "manage the Supreme Court."
In addition, article 27 vests the Genera] Assembly with the duties
of drawing up the regulations of the Supreme Court; assigning trying
duties to Supreme Court justices; deciding on the suspension of prosecution
of or arrest of Supreme Court justices in cases of flagranto delicto;
deciding on the removal of Supreme Court justices for incapacity; and
several other duties which must be classified as no;D:judicial (to be dis
cussed later). The Supreme Court i; ternal Regulations also vested in the
Assembly disciplinary powers over lower court judges and over other officers
of the court, including Chief Clerks and adninistrative officials from
service chiefs upward, pending the organization of the Judicial Council.
Despite this list of duties of the General Asse..bly, most of the day-to-day acti,'ities of the Supre.e Court ar-i handle in thC Secretariat headed by the Chief J*us: ic. The Secretariat is cco-posed of the Chief
Justice, two Deput- Chief Justices and a .Jus ce in ....of Judicial ,Xanuc- mnt. These are elected by the Assc=hly for one-year :e's.
153 Article 9 vests in the Chief Justice the ceremonial function of representing the Supreme Court in all official ceremonies. To this ceremonial function should be added article 11's purtly ministerial functions of signing decrees and arretes related to the management of the judiciary; contracts between the Supreme Court and third parties;, orders for appointments, promotion transfers, and disciplinary measures concerning judges, administrative officials, and court officials of all grades; and orders for judges and their subordinates and administrative and -:udiciai officials to assume a definite office in the country or out side it. All these functions may be characterized as more or less pro forma.
More importantly, with regard to the actual conduct of meetings of the Supreme Court in its various divisions, article 9 vests in the Chief Justice the powers to convene and preside over sessions of the General Assembly and the Secretariat; set trials of cases concerning constitutional enforcement and dissolution of political parties; apply the Supreme Ccurt regulations and carry out the decisions of the General Assembly; and super vise the Secretariat.
Article 10 makes the Chief Justice the dispersing officer for the Supreme Court's budget. Under article 14 he can make any expenditure up to 50,000 piasters without any additional auth:ity; for any expc'ndi~tre from 50,000 piasters co 100,000 piasters hl must have zhe approval 0f the SecretarLat; and for amounts over 100,000 piasters he =ust have the approval of the General Assembly.
:L" Without the necessity of any additional authority the Chief Justice has the power to appoint, promote, transfer, and impose discipli nary measures in cases concerning administrative and judicial officials from the rank of Administrative Chief of Court Clerks downward. For the discipline, appointment, or promotion-of higher-ranking court officials a vote of the General Assembly is required under article 29.
The Supreme Court Internal Regulations specifically empower the Chief Justice to delegate to a Deputy Chief Justice any one or several of the functions discussed above. In the absence of the Chief Justice, the first Deputy Chief Justice (or in his absence the Second Deputy Chief Justice) automatically succeeds to the authority of the Chief Justice
for he occasion.
Although the internal regulations regarding the two Supreme Court divisions contemplate that the Constitutional Enforcement Division shall be under the direction of Deputy Chief Justice, whereas the CXsation Divisioa is to be under the direction of the Chief Justice him self (article 50), article 18 of the Supreme Court Internal Regulations provides that a Deputy Chief Justice may be charged with the Cassation
Division as wr'-l as with the Constitutional Division. It is interesting to note that as a result of the first elction for the offices of the Secretariat of the Supreme Court, the Const .utional Division was put undcr the charge of the first Deputy Chief Justice Nguyen Van Si, whereas the Cassation Division was put under the second Deputy Chief Justice Tran Minh
Tier. Thus it is apparent that-the administrative duties of the Supreme
Court are shared among all of its members with the primary responsibility being vested in th'e Chief Justice and the secondary responsibility vested in the Deputy Chief Justice and the second Deputy Chief Justice. There are also provisions in the internal regulations for the appointment of
Justices to special non-judicial tasks which shall be discussed infra.
It is interesting to note that despite the possibility for in efficient administration of the Court inherent in having the Chief Justice serve so short a term as one year that in the second election held for the office of Chief Justice, a measure of continuity was apparently preserved.
The candidates for that office were the first Deputy Chief Justice and the second Deputy Chief Justice, Justices Si and Tiet, since the Chief
Justice Linh decided not to run. However, without a more detailed knowledge of the actual operation of the Supreme Court in its first year, it would be possible to tell exactly what degree of continuity 'waspreserved in the change-over. The shortness of the term is a priori suspect as probably in efficient.
156 Facilities
The S,'preme Court headquarters is t'le Gia Long Palace, an im pressive structure which ias'formerly the palace of the French governor of Cochin China. The building houses the couriroom, a reception room, offices of the Chief Justice and one other justice, and offices of some of the administrative staff of the' court. The palace compares favorably with other government buildings in Saigon and seems adequate insofar as courtroom facilities are concerned. However, the Court at present does not have exclusive possession of the building. Members of the President's legal staff are occupying a substantial portion of the second floor of the building. The Court has been promised exclusive use of the palace, but this has not yet been accomplished. The seven other justices' offices are located in three other government buildings (four in one building, two in another, and one in a third building) in downtown Saigon, as are the offices of other members of the Court's staff. The Supreme Court has had constructed a buil2i-g for use by its Law Research Center. This new building may be able to house some justices in addition to providing library facilities and space for research workers.
Certainly the Court needs, at least, the use of the entire Gia Long Palace. Ev-en these facilities will not be adequate for efficient housing c' the idministrative staff and the :x additional justices to be elected in 1971. But there are other things that the Supreme Court and courts in general need before new buildings, adequate typewriting
-±s? facilities, duplicating facilities, repairs to province courts damaged by the war, etc. However, if the Supreme Corrt is to develop a feeling of commonality, then at least adequate facilities should be made for having the offices of the justices all ,in close proximity. Possibly the New Law Center Building might eventually develop into a Supreme Court com plex.
In addition to the facilities provided for the Supreme Court offices, housing is also provided to members of the Court. There is an official residence provided for the Chief Justice. In addition, the
Supreme Court has an apartment building on Cao Thanh Street which is used to provide housing for various judges. The Supreme Court Finances
Article 83 of the Constitution of 1967 pr6vides that the Supreme
Court has an autonomous budget and is empowered to establish regulations
governing the judiciary. The separate budget to which this article refers
is not the budget of the Supreme Court alone but 6f the entire judiciary,
a budget which the Supreme Court controls because of its authority to
administer the judicial branch. Article 3 of the Supreme Court Law re
peats. that the Suprmne Court has an autonomous budget and is empowered to
establish regulations governing the judicial branch.
The guaranty of an "autonomous budget" is one of the devices
built into the Constitution and the Supreme Court Law saflguarding the
independence of the judiciary. An autonomous budget for the Vietnamese is
one that is not under control of the executive -r the legislative branches
insofar as specific expenditures are concerned. Agencies with autonomous
budgets are given a general allocation by the legislation rather than a
line item budget. They are thus free to apportio their funds without
direct legislative or executive supervision. Most government agencies,
following a tradition of strict fiscal control initiated by the French, are bound by the budget listings for various categories of expenses. Although
Supreme Court budget requests, when initially sent to the President and when combined by him into a national budget, do contain a breakdown into various categories of planned expenditures, the concept cf :he Court's budget being autonomous means that once the Court receives the total appro priation it can swItch funds from one type of expense to another. In this regard it is similar to the Upper and Lowcr Houses of the Vietnamese
i5 Leg.sLature, the Inspectorate, and several semi-independent government
corporations such as Air-Vietnam.
Agencies with autonomous'budgets also have a right to keep most of the money which they generate and a right to spend that income as they like. However, with respect to the courts, the concept of income does not include such things as court costs and fines which go into the national treasury, thus depriving the Supreme Court and the judiciary in general of a large potential source of revenue. Instead, income includes any money which the Supreme Court or the judiciary might make from the sale of books or other publications or from donations or the like. Possibly the Law Center could be a source of sizeable funds (not subject to outside accounting) for the Supreme Court since the Center has the capacity to accept donations. The concept of an autonomous budget does not, however, mean that the Supreme Court is immune to the power of the Inspectorate to audit financial records and to conduct investigations into governmental operations as its power extends to the Supreme Court and its activities as well as to all governmental operations. Also, it is tha treasury of Vietnam that is the agency physically handling the funds of the court. Receipts into the court system coming from fines, court costs, and the like are sent to the tr~dsury or its sub-offices. It is also the treasury which disburses funds on order of the Court.
The definitive Supreme Court budgeL request is made by the General Assembly of the Supreme Court. However, before that request is made the work and preparation of this budget is in the hands of the Chief Justice and the justice in charge of financial affairs. The budget they prepare is
1G0 itemized according to the traditional categories with expenses being
allocated to maintenance, equipment, and personnel. Once the Supreme Court
General Assembly has approved a prepared budget request, it is transferred
to the President of the Republic in the same manner as the budgets of all
agencies having autonomous budgets. It has been the practice of the
executive to make some changes in those budgets, although the Supreme
Court budget requests have not been substantially changed by the President.
It could be argued from the Supreme Court's dictum in the Budget
Case (decision of January 31, 1969] to the effect that the President could
request re-consideration of the legislature's appropriation for the
executive branch's operations but not those for other independent branches
without violating the separation, that he could not alter budget requests
from the Court. However, this dictum has been criticized somewhat, and it
seems to be an accepted fact that the President can alter tlh.e budget request
of the Court. Despite the impotence of the dictumh regarding the President's
power to alter requests made by independent agencies of the government (the
Legislature, the Supreme Court, and presumably the inspectoratc) he cannot
veto the budgets of the independent agencies once they have been approved
by the legislature unless those agencies specifically request the President
to do sc,.
In 1970, the Supreme Court's initial request was for 496,93.,000 piasters. The President recommended lowering the Court's budget to
421,945,000 piasters. After consideration by the President's office the budget was submitted, follow..g the procedure required under the Constitution, to the office of the Lower House. After the Louer House reduced the budget appropriation to 337,845'000 piasters the request next went to the Upper House which cut the appropriation even more to 276,P98,000 piasters.
However, the Lower House overruled the Senate and re-instated the House's original budget for the Supreme Court. This 'budget compares to one of
337,000,000 piasters for the Supreme Court's second year of operation which was about 8,000,000 piasters above the appropriation for the initial year of the Supreme Court's operation.
The aliocation of these funds and a comparison with the funds allocated for the operation of the Ministry of Justice are illustrated by the table below.
TABLE 1 - BUDGET
1968 1969 1970 1970 (Recuest)
I. Ministry of Justice 295,000,000$ 132,173,000$ 189,851,000$ 199,851,000S
07/501 Central Agency 35,646,0C3 30,776,000$ 43,695,000 43,695,000$ 07/502 5,760,0 1 07/503 6,133,000 07/504 Courts 188,748,000 87,813,000 129,407,000 139,407,000 07/505 Highland Courts 5,658,000 07/262 Notaries 13,055,000 13,584,000 16,749,000 16,749,000 Total of Personnel 1,539 807 SK3
II. Supreme Court 19,9472500$* 329,213,000S 337,845.000$ 496,93!,000S
02/505 Highland Courts 6,480,000 11,963,000 15,43a,000 02/525 Courts 194,515,000 234,957,000 330,160,000 02/522 Central Agency 128,218,000 90,925,000 145,735.000 Total of Personnel 1,263 1,564
*The Supreme Court did not have an independent budget during its two-month existence in 1968, but was allocat.d the sum stated by the Executive out of its budget. The financial operations of the judicial system are conducted by a central agency of the Supreme Court, giving the.*Court a strong element of control over che lower courts. Expenditures are authorized by the central agency, though each lower court is allowed a small 10,000 piaster allowance for minor expenditures. The main thrus of the Court with respect to financial matters since its creation has been to gain additional funds to increase salaries and allowanccs for lower court judges whose meager salaries were being severely diminished hy serious inflation. The incomes of the lower court judges were increased in 1969 by action of the Supreme Court. This increase met with some opposition from the executive branch and some other agencies because the judges' incomes were being increased while those of other government employees were not. Another reason for this opposition wns that, traditionally, judicial salaries were set accord ing to a government-wide civil service pay scale, and the Supreme Court action had the effect of partially removing the judges from that system. Legislation is expected to officially set a separate salary and allowance schedule for members of the judiciary and to put an end to their regulation by the civil scrvice rules and salary schedules generally applicable to government employees.
IG3 Case Load
A study of the available statistics on the case load of the Supreme Court's Divisions reveals that a backlog developed in the first year of its operation. Also facing the ,Court was a backlog of cases trans ferred to it from the former Court of Cassation. There were 385 cases filed with the Court under the Civil Section of the Cassation Division in 1969 -- the Court disposed of 277. In the early months of 1970 there was some success in disposing of the 108 cases backlogged from 1969, as the number of cases filed with the Court from the first of January, 1970, to the eighteenth of March, was 65, whereas the number of cases disposed of was 74. From March 18 to June 12, 1970, disposition of an additional 110
cases was made.'
The statistics of the Criminal Section of the Cassation Division reveal a similar pattern of backlog in 1969 and progress in disposing of this backlog in 1970. In 1969, 411 cases were filed -- the Court disposed of 311. In a period from January 1, 1970 to March 18, the Court disposed of 125 Criminal Cases while taking on appeal only 72 additional onel. The'period from March 18 to June 12 saw the disposal of an additional 73 cases. Thus the Court managed to eliminate over half its backlog from 1969 during its first two and one-half months of operation in 1970.
Part of the apparent problem that agose in 1969 may, in fact, be no problem at all since the statistics do not show how many cases were filed late in 1969 so that we have no idea of how long they were actually pending. In addition the justices of the Supreme Court were called upon to participate
:,14 in many judicial occasions abroad which, of necessity, cut down upon the
amount of work that could be devoted to their case load. The recent creation
of an a4dditional cassation chamber should also help reduce the remaining backlog.
The latest statistics available, as of June 12, 1970, are of
little value in determining how much of its case load the Supreme Court is
eliminating since these statistics only reveal how many cases were disposed
of and not how many were filed from the first functioning date of the
Supreme Court until the date of the statistics. However, they are useful
in illustrating an imbalance that exists in the distribution of the Court's
work load. While the Civil Chamber, Cassation Division disposed of 461
cases and the Criminal Chamber disposed of 514, there were only 30 cases of
cassation in administrative matters disposed of by the Administrative
Chamber -- presumably because fewer were filed and not because of any ex
treme complexity in administrative matters. These figures raise the
question of whether there should exist a separate Administrative Chamber at
all. However, the figures are unclear as to whether they include any work
of the Administrative Chamber in the judicial review of legality, which would
be raised by special petition or exception rather than request for cassation.
Also available are the number of constitutional cases decided by
the Supreme Court which, as is to be expected, is rather low. Only fifteen
constitutional cases were handled by the Supreme Court. No breakdotwn is
available as to the distribution of the number of case ; according to the procedure by which they reached the Supreme Court, though it is certain most arose on direct petition to the Court rather than in the course of litigation in the lower courts. Courts Control of Lower
The Suti;-reme Court's authority and duty to supervise and control the lower courts of the Vietnamese judiciary is derived from several articles of the Constitution. Article 76 of the Constitution states not that j1udizial power is vested in an. independent judiciary but that it is vested in the Supreme Court; article 78 requires that the presiding judges make decisions according to their consciences and the law under control of the Supreme Court.. Article 83 specifically empowers the Supreme Court to establish .regulations governing the judiciary.
The background leading to enactment of he provision of article 78 of the Constitution-placing prosecuting judges under the control of the Ministry of Justice also confirms the power of the Supreme Court to control the judiciary. Whereas paragraph 2 of article 78 declares that trying judges are under the control of the Supreme Court, paragraph 3 provides that prosecuting judges are under the control of the Ministry of Justice. This clear separation of the function of the prosecutor from the trying judge arises from the institution of the Supreme Court. Previous co the institution of the Supreme Court there was no separation of prosecuting judges from trying judges. Both had the same status and were called judges of the Court of First Instance or of the Court of Appeal or of the Court of Cassation as the case might be. The law permitted the Ministry of Justice to appoint a judge to the positions or Prosecutor, Examining Magistrate, Trying Judge, or Senior Judge of the Court of Appeal, as well as to the position of Attorney General, and to transfer judges to these posts. This is not to siv that judges under this prior system were con trolled in their decisions, for while they were all under the authority of ICG the Ministry of Justice,' an executive department, in .asystem patterned
on the Continental mode,, their "independence" was guaranteed by statute.
But the 1967 Constitution'moved 'toward an independent Supreme
Court, establishing the court as a third branch of government with in
stitutional safeguards to ensure its independence. Lower courts are
under its authority. In some respects, the extent of the Court's (2 autonomy is unclear, because the Legislature is also empowered to control
the coVrt system in some respects (e.g., article 76 provides that a law
shall establish the organization and administration of the judicial branch.
Article 77 provides that every court must be established by law. Law
007/68 was enacted to govern and control the Supreme Court.) Also a
Judicial Council is given some advisory powers with respect to the
judicial system. Removed,.however, is much of the executive's power over
the court system formerly exercised through the Ministry of Justice. Where
as all magistrates formerly were under its authority, the Ministry of Justice
now has authority only over that group of "Judges" which prosecute -- those
exercising essentially the functions that a United States prosecutor would
perform. The adjudicating and examining magistrates have been transferred
to the Supreme Court.
Other than this substitution of a new controlling institution at
the top and the division of the formerly unified corps of "judges" into
two groups, the lower court system remains relatively unchanged and is
functioning much as before. Control by the Supr=.e Court over the lower courts i.= much the same as the administrative control foc..erly exercised by the Hi, .Jtry of Justice. But, as previously discussed, the po-.,er to over haul tho judiciary exists subject to few constitutional l,.i=tations (every
-I C"-, court established bylaw,; judges professionally qualified, judges deciding according to their consciences and the law under the control of the Supreme Court, restricted removal of judges). How munh of this power is in'the Court, the legislature, and the executive is the current problem.
The control of the Supreme Court over the lower courts of the judiciary and their personnel went into effect immediately upon the taking of office by the Supreme Court. Article 85 of the Supreme Court Law, a transitional provision, required that immediately after the first justices of the Supreme Court assume their positions, all courts belonging to the judicial branch, as well as their budgets, personnel, and materials, ex cept for the prosecutor branch, would be under the management and at the disposal of the Supreme Court. The second paragraph of the article goes on to implement the separation even with regard to those judges not currently sitting on courts by providing that judicial personnel who were on special detail or on leave without pay would be placed under the administration of the Supreme Court or that of the Ministry of justice .depending upon whether the position held prior to being placed on the special detail or leave without pay was that of a trying judge or a prose
cutor.
The concept of a Supreme Court as the apex of the praid of h Judicial system bot'a administratively as well as judicially is a novel concept in the Republic of Vietnam with far reaching consequences. The
,urpose of this - section is to detail the structure ir..li.it n "he I lation and the Constitution, even though it may not yet be fully in order to establish both the scope and the boundaries of the Supr=e ez%.r power of supervision over the lower courts.
Of course, the Supreme Court has no direct contr 1 over the
decisions and opinions of the lower courts; consequently, this section is
devoted to considering aspects of administrative control. Judges are
still to decide according to the law and their consciences; there is no
implication of power in the Supreme Court to control the disposition of
actual cases in the lower courts. That power in the Court would be. exer
cised ir the normal appellate process, under the forms required in the
procedural J *z.
It is only appropriate to begin by noting the Supreme Court's
power over the allocation and expenditure of the judicial budget already
discussed in detail 2.upra. This power is clear and unchallenged. Indeed
it may be questioned whether the power is, perhaps not too highly cen
tralized to a degree that It is inefficient. At present a centralized
office of the Supreme Court furnishes almost all supplies and services.
A judge of a Court of First Instance or of an appellate court must work
through the Supreme Court central administration to obtain even minor
supplies. Lower courts have control of only a very small "petty cash"
fund.
This lack of autonomy appears in pr,ctice to create serious diffi culties for courts in the outlying provinces far away from the central management of the Supreme Court, especially those in insecure areas. In effect the independence of the judiciary is reduced by forcing judges to depend upon the generosity of a Province Chief for some necessary day-to-day
-!c' services to the court. This procedure can also be an undue burden on the Supreme Court by requiring the Court's attention to the details of small expenditures. Presently article 10 of the Supreme Court's Internal Regulations makes the Chief Justice*the Lispensing officer over the autonomous budget with authority to decide on expenditures up to 50,000 piasters. It would seem that under this authority the Chief Justice might delegate the responsibility of expending more petty cash to judges of the lower tcourt from time to time to keep up necessary operations without hav ing to make a change in the Internal Regulations of the Supreme Court, or in the Supreme Court Law or the Constitution.
One of the most far-reaching powers of the-Supreme Court is that granted by article 56 of the Constitution -- the-furction of administering the corps of judges, the courts, and subordinate personnel. In this Dower of administration the Supreme Court essentially succeeded to the position formerly held by the Ministry of Justice. Under *rticle 29 of the 7n=e-ea! Regulations of the Supreme Court it is the General Assembly of that Court which is in charge of "appointment, promotion, transfer and disciplinary measures regarding the Judges, Chief Clerks of the Courts, as well as ehe adminietrative urlIcials from service chiefs upward." This is indeed substantial power, and it is being exercised.
The only limitation provided by law upon this fu!l power of the Supreme Court to administer the judiciary are the provisions of articles,79, and 84 of the Constitution. The former article states thac presidirg Qe can be relieved of their functions only in the case of manval Qr p~siza,
il70 incapacity, conviction, or violation of discipline. Article 84gives to
a Council of Judges the responsibilities of making recomendations for
the appointment, promotion, transfer, and enforcement of disciplinary
rules against the judges'and of advising the Supreme Court in matters re
lating to the judiciary. However, neither of these apparent limitations
are a major hindrance to the Supreme Court's exercise of 4-s full powers.
Since under article 79 presiding judges can be removed or transferred for
violation of disciplinary rules and since under article 84 the powers
granted to the Council of Judges are advisory in nature, it would seem
that there is no clear limit on the Supreme Court's power to administer
'the lower courts.
However, the Supre-ne Court has apparently decided to exercise self
restraint with regard to this broad power by establishing article 30 of the
Supreme Court'L Internal Regulations which provides that the General Assem
bly of the Supreme Court shall decide "pursuant to the proosal" of the
Council of Judges as provided for in article 84 of the Constitution. This
.regulation also provides that only before the organization of the Council
of Judges might the General Assembly on its owni initiative decide on appoint ment, promotion, transfer, or disciplinary measures concerning judges. The
Council began functioning on October 31, 1969, and it is apparent that the
Supreme Court is treating the Council of Judges as a limitation upon its power.
However, the fact remains that this limitation is one imposed by an internal regulation of the Court which can be changed by a simple vote of the Court so that the Supreme Court has not permanently altered the
S"7j advisory nature of,the Council's recommendations, *The adoption of article
30 is-probably a wise and appropriate measure for the Supreme Court to
take while establishing its-authority over the lower courts so'that' this
authority will not be resented by the'judges of the lower courts.
Contact is maintained with the lower courts basically through
three reporting systems, that of the presiding judge, that of the examining
judge and that of the prosecutor. In those Courts of Peace with Extended
Jurisdiction staffed by one judge, that judge submits all the reports in
his three capacities. The prosecutor's copy, of course, is submitted to
the Ministry of Justice. Copies of these reports are sent to the Prosecutor
General or to the presiding judge at the appropriate Court of Appeal as
the case may be. The reports submitted to the Supreme Court go directly
to the Chief Justice who reads them and forwards them, with observazions,
to the justice in charge of court administration. The justice in charge oz
court administration then reads and refers them to the Secretary-General
of the Supreme Court with instructions as to what actions are to be taken.
Each month the presiding judge submits an elaborate reaort -it a fixed format beginning with a section on the general situation in his
territorial jurisdiction and followed by a general scateenc of his activities which include reports from circuit-riding, etc. he ree rt im cludes a section showing the number of pen,! cases disosed of by "es of cases, which are broken down into rather detailed cateories, and alsz a section on the type of civil cases disposed of, whic': ar dWrn very broad categories that reveal very little of the sustanace of the proceedings (e.g., categories of "contested matters, uyzls eO mztte=s summary proceedings',, .etc.). There is then a section showing the number
of pending cases at the beginning of the period, (with all penal cases
bein lumped to-ether and a repetition of the numbet of civil cases which
were reported in the previous category) the number of cases disposed of,
and the number pending at the end of the reporting period.
S . In this report is also included a section describing the work
of the Clerk of Court and of the staff member who -is attached to each court
to give legal advice to citizens. There is a section on personnel and
accounting, a section on the budget, and perhaps one or two other sections.
The report concludes with a summary of recommendations which tt. ni-.iding
judges make. These reports are often lengthy and detailed.
Copies of the reports are not easily available beyond the Court
and the Ministry. There is no annual publication by the Supreme Court be
cause of the shortage of personnel. Some compilation is made by the Ministry
of Justice, but is not broken down into .ery useful categories. The prose
cutors and the examining judges also report monthly in the strictly prescribed
form required for the gathering of statistics. The report of the examining
judge Is less elaborate than the presiding judge's report. It consists of
a pre-prepared notebook on which is shown the date of the commencement of
- the case, the date of the imprisonment, the date of the trial, and the nature
of the case with an approximate explanation of the facts found y the
..-examining judge, the course of examination, the trial, the oppeal, and the
ultimate sentence imposed. In essence the statistical reporting system
of the Vietnamese court system does not appear to be serving its function
of enabling the Supreme Court to maintain control of the lower courts in the best possible manner. Recommendations for improvement will be made infra.
One of the uncertain areas of the law with regard to the Supreme Court's authority lies in the question to what- extent has the Court authorit:y to create new lower courts. Article 77 of the Constitution re quires that "every court must be established by law. . . The dispute about the extent of the Supreme Court's authority to create new courts hinges upon whether the creation of a new branch of a type of court previously established is to be considered the creation of a new court and beyond the Supreme Court's authority, or whether it is simply to be con sidered an act of administration and within the Supreme Court's power.
According to the prevailing interpretation of this article, such
as that expressed by Senator Dat in his comment!.ry on the Constitution, article 77 only forbids the executive or judiciary to establish a new type of court but does not forbid the establishment at a new location of a branch of existing type of court authorized by law. It is generally accepted that Courts of Peace with Extended Jurisdiction can be converted to Courts of First Instance and that new Courts of First Instance can be established without having to first secure some legislative enactment. However, it would seem that it would at least require the cooperation of both the -executive and the judiciary to create a new branch of an existing court because article 77 requires that every court have prosecutors as well as presiding judges. Since a prosecutor is required and the Supreme Court has, no control over the assignment of prosecutors it appears that no new court could be established without the cooperation of the Ministry of Justice, With. respect to the creation of new courts and the conversion of the one-man Courts of Peace with Extended Jurisdiction to the three man Courts of First Instance required by the Constitution, there was some exploration of the possibility of accomplishing this change by joint decrees signed both by the Executive and the Court. This possibility was never developed, and there still is some uncertainty as to the power of the Court or the Executive to make these changes alone. However, an impasse was avoided since both the Court and the President issued separate decrees providing for essentially the same results. Still, there appears no way to force the Executive to assign a prosecutor to a court established by the Supreme Court and no legal way for a court so established to function without a prosecutor under the existing understanding of the law.
The Supreme Court's power over lower crurts encompasses some measure of authority over military courts, including tie older military courts and the more recent military field courts. The traditional mili tary courts, organized by Ordinance No. 8 of May 14, 1941, are headed by a civilian judge, selected from among the judges of the Court of Appeal, who serves with four military assessors. Assignment of the civilian pre s? ding judge is by the Supreme Court. As originally constituted by Decree 11-62 of May 21, 1962, the military field coturts were manned ex clusively by members of the military; however, the Supreme Court ruled these courts uiconstitutional in its decisio: of May 5, 1970, (Chau v. Minister of Defense and Lower House) partly because of the lack of Supreme Court control over those courts. A subsequent law, No. 6/70 of June 23, 1970, has reformed these courts to provide for civilian presiding jujdgeas nn-ed by the Supreme Court. ... Passage of this law adds towthe Court's 'estige as the head of the entire judiciary of the country and reaffirms the traditional policy of having the military justice system functioning as part of the country's
one legal system rather than being entirely apart from the civilian judiciary. 'iThe new law does give the Court an additional measure of con trol over these military courts; however, the control is small since the majority of the court panels are military men who, in most instances, are not legally trained. There is also a lack of control over fiscal matters of these courts which are to a large extent military institutions.
Thus,' the control is not truly effective. Even assuming its desirability, Supreme Court control,over the military justice system is still far off.
As a practical matter, the latest information available indicates that the Executive has acquiesced in the'Supreme Court's decision and that members of thel regular judiciary are being appointed to military field courts. Coui 1 of Magistratas
The establishment of a Council of Judges was ordered by article 84
of the Vietnamese Constitution. ;This Council has the responsibilitiesof
making recommendations for the appointment, promotion, transfer, and en
forcement of disciplinary rules against the judges and of advising the Supreme Court in matters relating to the judiciary. Article 84 specifies
that the Council shall be composed of eight judges elected by all judges under the Supreme Court's administration. The organization and regulation
of the Council is to be prescribed by law.
The law prescribiig this organization is Law No. 016/69 of
October 20, 1969. Article 2 of this'law requires that the Council be com posed of four members elected by the Supreme Court justices, the'judges serving at the Council of State, and the judges of the Court of Appeal;
and four other members elected by those judges serving at other courts.
The Chairu.an on the Council of Judges is the one highest in rank or, in
the case of equal ranks, the judge who is senior in service. Under article
3 members of the Council must be judges now under the Supreme Court's ad minis.:ation. In addition the judge must be currently in active service
at the court to which he is assigned (that is, he cannot be on extended
leave to work with another branch of government, in the military, etc.).
He must have ten years of experience as a judge in a judicial agency in order to be elected as a representative of the judges of the higher courts and five years experience for election by the Courts of First instance. In addition, no member of the judiciary against whom any.disciplinary measure has been imposed is eligible for election. The term of office is for two years, but the judge does not leave the postto which he is attached in order to sit on the Council of Judges, but rather he undertakes this duty
in addition to hs ordinary judicial responsibility.
The law also expressly permits all judges the capacity of voting in the election for the Council whether they be in an ordinary or a special court or whether on detacl-hent or on long leave or on leave without pay. Of course, it does not include "prosecuting judges" who are not under the
supervision of the Supreme Court.
Ordinary operations of the Council of Judges take place unLder the direction of secretary-General appointed by the Chief Justice "in pursuance of the Council Proposal." This Secretary-General has the office of Secre tary to the Council of Judges with no voting rights. The Council itself meets quarterly upon the call of its Chairman and may meet in extraordinary sessions either upon the Chairman's call or upon the proposal of one-third of the total membership of the Council. Three-quarters of the zembershi? require a quorum. The Council makes its decision through the secret vote of a plurality. The law expressly provides that the subjects of the C3cU .¢i'S discussions are to be kept absolutely secret.
Although the Council does not actually impose disciplinary measures upon judges, it nonetheless has authority to reco=end disciplna measures to be ii'posed by the Supreme Court. Accordingly the law provides that before the Council may vote on a disciplinary measure to be = pos--e the judge who is the defendant may enter a plea i.- Tri i._. c--d_-_,fead. . mzelf ora',iy before the Council. The Council's determinations regarding discipza4. are not binding on the Supreme Court. Probably the most important function of the Council of Judges is to propose to ihe Supreme Court appointments, promotions, and transfers as authorized by article 84 of the Constitution, article I of the legis lation relative to the Council'of Judges, and article 30 of the Internal Regulations of the Supreme Court. However, it must be emphasized that this participation of the judges in the process of promotion is ultimately advisory in nature. The Council may prove to be an extremely useful in strument in securing the promotion of the most capable judges. A perrenial problem of countries having a professional career judiciary is whether appointment is to be made according to the "merit" of the judge or according to seniority only. The difficulty with the "merit" promotion is that it is an almost totally subjective standard; where promotions are ostensibly based upon "merit" a great deal of resentment is aroused among those judges who are not promoted rapidly. On the other hand, the problem with the seniority system is that although it is a completely objective standard, some judges who are not as capable as others with less service are promoted first.
The system of the promotion of judges in Vietnam including the use of the recommendations of the Council of Judges has the advantage of not specifying that promotion is to be through merit or through seniority but simply gives all the judges a voice in deciding who is to be promoted. This is a highly desirable method of promotion so long as it continues to be recognized that the Supreme Court has ultimate authority in the matter -- the selection for appointment is predicated neither upon grounds of merit or seniority but upon the reco~nendation of the Council and the will of the Supreme Court. It will probably arouse less resentment among those judges
fi7S who are not.promoted than any alternative scheme that could be devised at this point. Of course, only time will tell how well the system works, but it can be said that it is a rational approach to a problem that has plagued a great many judicial systems.
.,The Council.has been meeting since its creation on October 31, 1969, and is cmmencing to function. It works close-ly with the adminis trative staff of the Supreme Court and has yet to develop its own staff of workers. For example, in recommending promotions and transfers, the Council uses the staff work of the Supreme Court administrative agencies and bases its recommendations on .those preparatory documents. In fact, the Secretary of the council has been at the same time the Director of Court Administration for the Supreme Court. Being composed of full-time judges assigned to pos.ts throughout the country, and meeting only quarterly, it may take some time for the Council to fully develop into a coherent, uni fied body exercising as much independence as it might ard as would be desirable in representing the interests and independence of the judges.
4-1 .Control Over the Bar
At present the Supreme Court exercises no direct control ,over
the bar associations; the control is presently vested in the Court of
Appeal over the two separate bar associations for Saigon and for Hue in
the north (see the discussion in relation to the control of the bar by
the appellate courts for more information). However, it may be desirable
to extend the Supreme Court's authority over the bar associations in the
development of a unified bar association concurrent with the unification
of Vietnamese law by the passage of the pending codes.
Under Law 1/62 of January 8, 1962, the geeral overseer of
activities of the bar associations on the part of the court system has been in the past the Prosecutor Generals of the respective Courts of Appeal.
Since the judicial power has now been separated from the prosect.ting power proper one can make a strong constitutional argument that supervision over the bar associations has been vested in the Supreme Court by virtue of article 76, paragraph 1 of the 1967 Constitution since such control would seem to be inherent in the judiciary's power to decide what persons shall have the right to practice before the variobs courts that comprise it. Of course, it would be desirable to nave legislation enacted clarifying the matter.
In prrctice, although the Prosecutor General is no longer ad ministrator of the judicial service, his supervisory powers over the bar association have not been clearly changed by law. Some members of the Saigon Bar Association have been attempting to remove these powers f~om the Prosecutor General by recommending the formation of a National Bar Council, composed of representatives of the Saigon Bar and the Hue Bar, with Ehe supervisory powers over the bar associations now apparently
lodged with the Prosecutor General..
Such a move woud have'some advantages in that it would be a move toward one national bar association. At present a member of the Saigon Bar Association cannot practice before the Hue Court of Appeal or before any lower court under the jurisdiction of the Hue Court of Appeal without first securing permission of the deciding judge of that court, and vice-versa with a member of the Hue Bar Association appearing in the Saigon area. However, though it is desirable to have unification of the bar within Vietnam, it is not clear that the proposal envisioned by the Saigon Bar Assor atiun would be one permitting freedom for lawyers to practice over the whole of Vietnam. Although in the past there was sc=e rationale for not having a unified bar association, when the codes are adopted and Vietnam achieves unity in its substantive and procler aw, there would be little reason to have separate bar associations except as localized branches of a National Bar Association. in other ord, there would be no reason to bar a Hue lawyer from practice i4 Saigcn --. ._e_ versa. Furthermore, the plan of the Saigon Bar i'?esizasS =,7:: to recognize the legitimate interests of the Sure- r: in.. " practice before the lower courts. In essence the :-poam-ez a degree of independence to the bar association that is nztes.... - quired by the Constitution. Non-Judicial and Quasi-Judicial Functions of Members of the Supreme Court
In addition to those duties imposed upon the Supreme Court by Chapter Five of the Vietnamese Constitution relating to the judiciary,
there are a small number of non-judicial or quasi-judicial duties imposed
upon the Supreme Court or its members by other parts of the Constitution. The two duties imposed by the Constitution upon the Supreme Court as a whole are those c supervising the election and inauguration of the President and
appointing une-third of the Inspectorate.
Article 54 establishes the non-judicial duty of election and inauguration supervision which is most likely to present problems to the Supreme Court since it directly involves it in the political process. Article 54 declares that the Supreme Court shall establfzn a list of candidates, control the validity of the election, and announce the results. In a sense this may be viewed as a quasi-judicial function since what the Supreme Court is doing is applying the Constitution and the electoral laws to the electoral process. However the duty of validating a list of candidates is one that could have been delegated to the executive subject to a review by the judiciary of an abuse of power. Surely the control of the validity of the election could be an executive function subject to challege before the Supreme Court by disgruntled candidates; certainly, announcing the results of the elections could have been carried on by the executive.
But, perhaps it is wise to entrust these functions to the Supreme Court a in highly volatile political atmosphere since the Court would be likely to come into the spotlight a'niay because of 'the challenged
elections. Th burden on the time of the Justices is apparently not a
great!one; consequently, there appears to be ao major objection to their
carrying out these functions. In a sense such responsibilities do buttress
the prestige of the Supreme Court since the Court is characterized as the
ultimate repository of the authority in the Republic governing and legiti
mating the exercise of the political process. Certaiily there is little
objection to the Court and the General Assembly being required by article
55 to witness the taking of the oath of office by the President.
With regard to the Inspectorate the duty imposed upon the
Supreme Court is a natural consequence of its status as a co-equal branch
of the government along with the executive and the legislative branches.
Both the National Assembly, the President, and the Supreme Court have the
same right to designate one-third of the Inspectorate.
In addition to the above-discussed duties there is also i=posed upon the Chief Justice of the Supreme Court the duty of sitting on the
"Special Court" which -s that organ of the government e-wowered to re=ove from office the President, Vice-President, Prime Minister, Xinis:er,
Secretaries of State, Supreme Court justices, and mem-bers of the I.s.e..rate in cases of treason or other high crimes. This "cour:'" consis:s of five representatives and five senators in addition to the Chief Jus:ize is the Chairman of the Court. If the Chief Justice ShoU! 4 be a d.e:.4 then the Chairman of the "Specia- Court" would be t"he Chair=an. oi che - House. The "Special Court" is functionally equivalent of the American institution of-removal by impeachment and conviction. The process of removl must be instituted by a motion for prosecution citing reasons therefor and signed by more than half of the total number of representatives and senators and approved by a two-thirds majority of both houses. When that step is taken the accused is suspended from functioning in office until he is tried by the "Special Court". The "Special Court" decides on removal from office by three-quarters vote of its membership, or in the case of the President and Vice-President, four-fifths of the total membership. A decision adverse to the defendant by the "Special Court" removes him from offir- but does not result directly in a penal conviction. Officials are then subject to trial by ordinary courts, except that according to article 75 of the Internal Regulations of the Supreme Court, Justices who have been removed by the "Special Court" are to be tried by the Supreme Court rather :han by the ordinary courts.
! . ' i. Operations Procedural
The novel jurisdiction and procedures for constitutional review
are set forth with great detail and clarity in the Constitution and in
the Supreme Court Law and have been discussed before. However, the same
is not true of the jurisdiction and procedures in ordinary litigation.
What is the precise mianing of article 81 of the Supreme Court Law's
provision that procedures for appeals presently in force in the Court of
Cassation and in the Council of State and which are not contrary to the
provisions of this law can temporarily be applied in the Civil, Criminal,
or Administrative Chambers in accordance with the nature of the litigation?
Ordinance No. 27 of September 2, 1954, establishing the Court of Cassation co.ntains in article 11 provisions that the legal procedures
in civil, commercial and criminal rases shall be those provided for by sections 2, 3, and 4 of Chapter 1 of Ordinance No. 5 of October " 4,9.
This latter Ordinance instituted the jurisdiction and procedures for the old Supreme Court of Vietnam. Here one encounters an interesting iacna.
Article 7 of Ordinance No. 5 of October 18, 1949, is !ound in section 1 of the first chapter; thus, it is not explicitly retained by Ordinazce
No. 27 of September 2, 1954. However, article 14, the ganeral reain3 article of. Ordinance No. 27 of September 2, 1954, states th; all fa going legislation contrary to this Ordinance shall be abolishaz, es-ecially articles 1, 2, 3, 4, 5 and 6 of Ordinance No. 5 of October $, L94@. ThIS. article 7 is excluded from the class oZ articles explicitly repealed. AU.
iss available data .indicate that article 7's criteria for cassation are still
applied in Vietnam. For example, the Vietnamese Legal Center's, THE NEW
LEGAL SYSTM (Saigon, 1970) p. 72, cites article 7 of Ordinance No. 5
of 1949 as the present basis for cassation in Vietnam. It mutt be
concluded that article 7 of the old Supreme Court law is still in effect.
Article 7 of tha old Supreme Court Law states that there are four
grounds for cassation: (1) lack of jurisdiction or abuse of cuthority,
(2) violation of the law, (3) disregard for legal procedures or regulations,
and (4) conflict in two judgments pronounced by two different courts on
the same case. These grounds of cassation correspond fairly closely to
the moyens de cassation of the French Cour de Cassation which Herzog in
his book, CIVIL PROCEDURE IN FRANCE (Nijhoff, 1967), lists as (1) violation
of rules of substantive law, (2) violation of procedural rules prescribed "or. pain of nullity", (3) inconsistency between decisions between the same
parties and (4) exces de pouvoir.
The sections of the old Supreme Court law that were expressly
declared in effect by the law establishing the old Court of Cassation
and which were continued by article 81 of the new Supreme Court Law provide adequately detailed infonnation as to what a lawyer must do to take an
appeal, including information as to the delay, the bond required, etc. Article 5 of Ordinance No. 27 of September 2, 1954, establishing the Cour de Cassation, provided that the Court of Cassation should consist of two chambers: the civil chamber and the criminal chamber. However, article 50 of the new Supfeme Court Law provides that the Cassation Division con sists'of at leat three chambers, the Civil Chamber, the Criminal Chamber, and the Administrative Chamoer. With respect to the new Administrative Chamber, procedural rules were provided by the retention of the procedures of the Conseil d'Etat and also by the extension of the procedures of the Court of Cassation by analogy to cover administrative cases with modifi cations so as 'co eliminate delays and streamline the process somewhat by not requiring any procedure for recassation. Under the ndw law there may be more than one chamber of a particular type (Civil, Criminal or Administrative). In the first year of operation the Civil Cassation Chamber of the Supreme Court-was a single chaiber, but now there are two
civil chambers with three judges in each chamber.
The operations of the Court are illustrated by the practice followed in the Civil Section of the Cassation Division during 1970. In its first year, the Civil Cassation Section of the Court was composed of one panel or chamber; as of 1970, it is composed of two chambers with three judges in each chamber. Chamber No. 1 was headed by Justice Bien, who served with Justices Linh and Bich. The second chamber was headed by Justice An, who serves with Justices Linh and Liem. Having two chabers, of course, introduces the possibility of conflicting decisions cn the szme point. No ins;:itutional means of settling oz avoiding such . is available -- there is no en banc rehearing procedure. PrPacticaly, however, Justice Linh serving on both chambers helped in avoiding contra dictory decisions, There is also informal consultation betwee. the justices concerning novel questions before their respective chambers. Review by the Supreme Court is initiated by the appellant's
noting of his appeal at the Court of Appeal, -hose clerical staff forwards
the dossier of the case to the Supreme Court Cassation Division. The
Chief Clerk of the Civil Section of the,Cassation Division will super
intend the sending of notices, etc., and otherwise obtaining the two
briefs of the litigants and completing the dossior. Once it is complete
and ready for adjudication, the dossier is placed on a numbered list of
all cases similarly prepared.
In 1970, the head of the Civil Cassation Division divided the
list between the two chambers and the compJeted dossiers were then sent to
the President of each chamber, who further subdivided, in some random manner, the dossiers to each of the three members of the chamber. One
justice was then given primary responsibility for the dossiers assigned
to him. He had the duty to examine and study the case. and prepare a memorandum discussing the issues and recommending disposition. Once this was done, the dossier and the memorandum by the justice primarily respon sible were sent to the other two justices on the panel who were, in turn, given the opportunity to study the dossier and the memorandum. This memorandum was also submitted to the Prosecutor General of the Supreme
Court for his recommendations. With this memorandum as the basis, the three members of the chamber would deliberate and discuss the case; a hear ing would be held; and the attorneys would have the opportunity to present oral arguments if they chose. They seldom, if ever, chose to present oral arguments and usually presented their arguments and conclusions in written briefs. There would then be further deliberation by the panel followed
by'a decision.
Withreference to the effect of'decisions in ordinary civil cases the most noteworthy feature of tbe'Vietnamese procedure is that the Vietnamese have retained the dlassic French procedure for re-cassation wherebythe Court in quashing a decision refers the case to a lower court which has the authority to decide contrery to th= Supreme Court's view. In such cases, of course, the cassation section of the Supreme Court meets with chambers reunited to decide the matter again. When a case is remn'Jed a second time to a lower court, that court then must comply with the final view of the highest court. It should be noted that retention of this procedure is contrary to modern trends toward making the first decision of the highest court the binding one. Even in some countries retaining a cassation procedure, it is now provided that the first decision of the highest court must be followed. Such is the case, for example, in Italy, where the Code of Civil Procedure of .1942 provides that: the legal princi ples determined by the Corte di Cassazione must be aplied the first time a case is remanded, and no lonaer only upon a second remand.
The modern procedure is more appropriate to the dignity of the highest court of the land than the antiquated French system. Nonetheless, the Vietnamese system is unlikely to be abolished soon since even the official draft of the new Code of Civil and Commercial Proced,:re pending before the legislative branch of the Vietnamese goverrnment retains in artizle 314 the requirement of recassation, as does the 1963 Supreme Court Law. However, that.Code of Civil and Commercial Procedure for the Republic
of Vietnam was drawn up before the establishment of the Vietnamese
Supreme Court and refers repeatedly to the power of the Court of Cassation.
The process of review of the decisions of lower courts and of
administrative agencies is complicated by the manner in which the Supreme
Court Law implements the provision of article 81"(l) of the Constitution
of 1967. 'The Supreme Court is empowered to decide on the legality of
decrees, arretes, and administrative decisions. Articles 63 and 64 of
the Supreme Court Law provide for the review of the legality of decrees,
arretes, and administrative decisions the same procedure that is available
for the concrete judicial review of the constitutionality of laws and decree-laws. All natural.or artificial persons may petition the Supreme
Court for a decision that some decree, arrete, or administrative decision is illegal -- even before suit has been commenced. When a lawsuit has been commenced, then the procedure for review by exception with all the attendant delays is available for the review of the legality of the norm or decision in question. As *inthe case of the concrete judicial review by means of exception, the court which is handling the case may decide not to submit the petition for an exceptional plea to the Supreme Court if it finds tlat the reasons cited are obviously unfounded, but the interested party can take the matter to the Supreme Court despite the adverse ruling upon posting a
5,000 piaster bond -- an inadequate sanction in view of the present inflatior in Vietnam.
-, 2. The adoption of the provisions for "legality control" paralleling those for judicial review for constitutionality results in a means by which parties can initially avoid the administrative appeal process entirely and proceed directly to the Supreme Court for decision.
.This procedure for the judicial review of the legality of administrative acts does differ in some important consequences from the procedure in recourse for the excessive exercise of power at the Council of State (which procedure is also available). In the'review of the legality of an administrative act the Supreme Court cannot award damages. It can only pronounce upon the legality vel non of the action in question. The claim for damages must go before the proper administrative court or the Council of State. Secondly, the decision of the Supreme Court has an ab solute effect-- it is considered binding on all (erga omnes) -- whereas a decision that the act in question was illegal under the recourse for the excessive exercise of power before the Council of State affects only the person making the complaint. Third, the judicial review of the legality of an administrative act by the Supreme Court probably does not have a retroactive effect, whereas the procedure in recourse for excessive power of the Council of State is retroactive and allows restitution for damages suffered as a consequence of the illegal act.
The Supreme Court's power to review the legality of an adminis trative decision upon petition or exception must be dictinguished as an entirely separate matter from the Supreme Court's appellate review proper in administrative cases. They are in essence different.
.4-Q47, The Council of State, established by Ordinance No. 38 of
November 9, 1954, still-retains two of the four powers granted it by
article 9 of that Ordinance: the power to review judgments pronounced
by the Administrative Courts of First Instance and the power to rule in
the first instance on all cases'pertaining to the administrative status
of public servants appointed by presidential decrees or by decisions of
the Prime Minister. This latter power, however, appears to have been
modified. Originally the Council of State decided such matters pertaining
to Public Ministers conclusively as well as in the first instance, but the
new Supreme Court Law may be interpreted as being inconsistent withithe
provision that the judgments of the Council of State in such matters per
taining to public servants is conclusive. The contrary interpretation
(that the provision of article 9 of Ordinance No. 38 that the decisions
of the Council of State are conclusive in cases pertaining to public
servants is not 4aconsistent with the Supreme Court Law and hence is not
abolished) is also possible and would relieve the Supreme Court of a cer
tain burden of hearing cases, but, at the same time, it might damage its
prestige.
Whatever the outcome of the problem above, an important power
vested in the Supreme Court in addition to its power to review the legality
of administrative decisions by petition or exception is the power to quash decisions of the Council of State made either under the Council's original
jurisdiction or under its appellate jurisdiction from lower administrative courts in cases where a citizen requests some concrete form of relief such
'9 as the awarding of damages.
' It appears likely from the inclusion of the provisions for the
Supreme Court's jurisdiction in matters of judicial review of constitu
tionality with the provisions of the review of the legality of administrativ
acts that what the Vietnamese have done is largely to extend the procedure
for the review of the legality of aces to constitutional matters -- thereby
expanding "legality control" considerably. There is a great deal of
conceptual logic to this *expansion,. The NEW LEGAL SYSTEM quotes P.cDuez
as stating that the'Law and the Constitution both have the same juridical
nature,,except that judicial review of constitutionality is merely a higher echelon,of '"legalitycontrol."
But however conceptually self-consistent this expansion is, there
is serious question as to its practicability. It is one thing to require
that ordinary civil, commercial, or criminal courts suspend their proceed
ings when an administrative issue is raised and to take that issue to the
Conseil d'Etat whose special function is to review the legality of ad ministrative decision. But it is quite another to allow on& to suspend
the ordinary court's proceedings in a matter in which the constitutionality of a law or decree-law is challenged and to go to a court which is not specialized solely in the decision of constitutional issues but which also has a myriad of other judicial duties. Such a procedure promotes both de lay at the trial court level and over-burdening of the Supreme Court.
With tregard, to constitutional-matters, the Supreme Court has adopted a rather indirect method of avoiding the adverse effects of a
literal reading of article 77 of the Supreme Court Law. Article 77
provides that a Supreme Court ruling has the effect of stopping imple
mentation of unconstitutional or illegal legislative enactments, adminis
trative regulations, or administrative decisions from the date of its
publication in the Journal of the Republic of Vietnam. It does not
specify what the effect shall be upon the individual who has challenged
the constitutionality of the decision by means of exception in a concrete
action or by the petition of a private person in an action of concrete
judicial review.
In Chau v. Ministries of Defense and the Lower House, Supreme
Court Decision of May 5, 1970, the Supreme Court General Assembly held the
.Military Field Court which convicted Representative Chau to be unconstitu-".
tional. However, the Court did not in its decision explicitly order
Chau's release; rather, it transferred the case to the Criminal Division
of the Cassation Section of the Court for further proceedings.
Although article 77 does seem to envision a prospective effect only for the Supreme Court'- decision in constitutional matters, it could not rationally be interpreted to bar the Supreme Court from giving relief in an individual concrete case before it, since to fail to give relief would be equivalent to requiring a person to do a vain tsing. Since the law does make provisf.on for a private party at any stage of a litigation to challenge the constitutionality of a law it wpuld seem illogical to hold that in deciding this case the Court could give no relief because the
decision would iave to beprospecttve'in effcct,
Wilhelm Karl Geck in his article Judicial Review of Statutes:
A Comparative Survey of Present Institutions and Practices, 51 CORNELL
LAW QUARTERLY 250 at 283 distinguishes between those few countries where
an unconstitutional statute may be annulled ex tunc and the many states,
such As Austria, Cypress, Italy, and Turkey; where a statute may only be
voided ex nunc, on the publication of the decision in the official gazette.
The general effect of voiding the statute ex nunc, however, does not
preclude relief being given directly by the constitutional court, or other court, in a concrete case before it. As Geck observes, "in Austria,
for example, the unconstitutional statute will still be applied to all cases
originating prior to the Court's ruling. Only in the one case submitted
to the Constitutional Court will the statute be treated as unconstitutional
ex tune (i.e., retroactively). Without this exception it would be futile
for any submitting court to apply to the Constitutional Court." Thus, in
those countries having a system of concrete judicial review similar to
that established in Vietnam where it is stated that the decision shall have
the effect of voiding the law as of the date of its publication in the
official gazette, the constitutional courts of such countries, and not the
ordinary courts, as an incident of constitutional review do give relief to
* the concerned individual who has brought the concrete action.
Article 77 should be read only as barring retrial of cases.that
19 have already gone to final judgment. Thus, it would not appear that
article 77 would serve to bar relief in the crncrete case contesting a
statute, since cases are brought before judgment becomes final.
In the Chau case the Vietnamese Supreme Court solved the problem
of giving relief in the concrete case by referring the case to the Cassation
Division's Criminal Chamber. This method of procedure would seem to be
unnecessary. *The court evidently makes too fine a distinction between
operating constitutional cases where concrete judicial review is involved
an2 ordinary cases. The Court interprets narrowly the provisions of
article 81 of the Constitution and article 2 of the Supreme Court Law that
the Court can decide on the constitutionality of laws and on the constitu
tionality and legality of decree laws, arretes and administrative decisions.
It views this power as not extending to the overruling of court decisions.
However, since any court's decision has to be based upon the law it would seem a logical necessity that a decision of the Supreme Court such as existed in the Chau case declaring the law unconstitutional would ipso facto annul the decision of the lower court by removing its.legal basis. It remains to be seen whether the Court will encounter any strong practical difficulties by the way it has interpreted its own power of judicial review in concrete cases.
Another decision of the Supreme Court, Chuc v. Ministries of
Economy and Finance, Supreme Court Decision of May 5, 1970, illustrates that the Vietnamese Supreme Court has a sophisticated understanding of the necessit of proceeding cautiously in constitutional matters. The case arose as a rebult of Adniinistrative Order 1569 of October 23, 1969, whereby the
Ministers of Finance and Economy increased substantially the austerity
tax enacted as part of a program to prop up the Vietnamese economy. Al
though this measure was deemed necessary, it was a politically unpopular
act, and the members of the Legislature expressed their opposition. The
President of the Senate requested the Supreme Court to interpret the con
stitutionality of the matter and to consider the legality or unconsti
tutionality of the derision to raise the taxes. The Court considered the
request and issued a decision.
The Court made the basis of the decision the refusal-of the
Senate to actually argue the case beyond the point of making a mere re
quest. The Court thus disposed of the case by a technicality of pleading
rather than by entering into a direct confrontation with the Executive by
flatly holding that the tax increase was illegal, although the Court did
indicate in dictum that they thought that the tax increase was illegal. This procedure not only avoided a series of direct confrontations but also gave the Executive a chance to save face by modifying its actions to.secure the necessary legal authorization for its act.
The Supreme Court was rather vague, however, on the question of the enforcement of its decision. In dictum the Court declared the tax increase illegal "with the consequence prescribed by law". However, the
Court could, in order to secure greater equity in constitutional matters,
-cz~ interpret article 77 as precluding the retroactivity of decisions of
constitutionality in all cases where opportunities for contesting the
legality of an act have passed either by prescription or by final judgment,
but as allowing relief in those cases that have not reached such a state of
finality. While such an interpretation might be stretching the language of
article 77 too far, the rationale in such a decision would be that although
the article states that the decision shall have effect from the date of its publication in the official gazette, it does not preclude the decision from being retioactive in extraordinary cases just as a statute can be made retroactive in extraordinary cases.
1%3 Publication of Decisions
With the present large case load of the Supreme Court it is
understandable but regrettable that there i% no system established for
reporting written decisions. There are, however, a few bright spots in
the picture: the full opinions in constitutional decisions that have been
rendered have all been given in writing. The Supreme Court Law Review, in
its third issue, seems to have undertaken to fill the gap existing in
reported decisions by collecting documents and decisions in cases. Most
of the collected material is relative to constitutional cases. However,
there are also some decisions noted in that issue of the Law Review concern
ing ordinary cases which were decided by the Supreme Court as well as the
Courts of Appeal and Courts of First Instance. The Law Review of the
Ministry of Justice also publishes some court decisions.
The use of the Supreme Court Law Review, and that of the Ministry, may be the only feasible short-range approach to the problem of publication
of decisions; it does not seem to be a co=.mercially feasible project at the moment to set up a system of complete case reports or even Supreme
Court case rpports. However, it must be remembered that the selective publication of notes on decisions in the Supreme Court Law Review is only an interim stop-gap measure until conditions improve. If any significant body of jurisprudence *isto be developed in Vietnam outside the constitutional area, some effort must be made to disseminate written decisions in at least the most important cases involving matters of ordinary law. On a long-range basis it would seem-reasonable that the Law Center should undertake the task of publication of Supreme Court decisions on the regular basis.