VIETNAM

Renovation of a Legal System

An Australian Parliamentary Consultative Delegation visited the Socialist Republic of Vietnam, betweem 4-13 April 1995

Chris Sidoti, ALRC Commissioner and a member of the delegation talks to Reform Editor, Michael Easton.

Twenty years after the fall of Saigon, Vietnam is a country on the verge of an economic boom. The US embargo has been lifted, the government is implementing its version of perestroika (called doi moi' - renovation), and tourists and backpackers are arriving in increasing numbers. In April 1995 an Australian delegation spent ten days in Vietnam. Its intention was to discuss the relationship between the two countries, with a special emphasis on the issue of human rights.

The nine delegates were: Senator Stephen Loosely, leader of the delegation and Chairperson of the Parliamentary Joint Standing Committee on Foreign Affairs, Defence and Trade; Alexander Downer MP, Shadow Minister for Foreign Affairs; Senator Vicki Bourne, Australian Democrats Spokesperson for Foreign Affairs; Professor Nancy Viviani, Professor of International Politics, Faculty of Asian and International Studies, Griffith University, Queensland; Chris Sidoti, Commissioner of the Australian Law Reform Commission; Professor Trang Thomas, Chairperson of the Victoria Ethnic Affairs Commission; Ms Ho Mai, businesswoman and former Councillor of the Footscray City Council; Bill Barker, Director of the Human Rights and Indigenous Issues Section, Department of Foreign Affairs and Trade, (DFAT) and Phong Bui, Director of the Vietnam/Laos Section (DFAT). During their travels they were accompanied by the Australian Ambassador, Sue Boyd and Second Secretary Robyn Mudie.

As an ALRC Commissioner, Chris had a special interest in Vietnam's legal system - a system that has been struggling to catch up with the economic changes and the inevitable social and political consequences. The delegation proved to be a source of many interesting insights. Chris began the interview by outlining the purpose of the delegation:

The main role was to engage in dialogue, to place human rights at the forefront of discussions between Australia and Vietnam. Australia and Vietnam are both parties to a significant number of international human rights treaties. The delegation was to ensure that this issue receives the attention that it deserves as part of the broader bilateral relationship between the two countries.

We wanted to listen to the views of Vietnamese officials at different levels, as well as those of the broader Vietnamese community, to get a feel for the ways in which the Vietnamese government and people are responding to human rights issues and the role of human rights within their system. And, conversely, we wanted to share our perspective - to indicate the ways in which we look at human rights issues domestically and how we see these international treaties operating.

Isn't this a diplomatically sensitive area? You cannot just go around saying we are going to send a human rights delegation to your country' - can you?

The Australian government does not see these delegations as being investigatory. Firstly, there are enormous problems in an official body from one country investigating the activities of another. It would also be quite naive to think that any official body or group going to another country for a period of seven to ten days could conduct an effective investigation - even if it were permitted to.

Could you give a rough sketch of the itinerary?

What did you discuss in your meetings?

Developing the legal system is a precursor to economic development. It is also, of course, a precursor to appropriate observance to human rights.

It is very difficult to have a human rights regime that respects the rights of people if you do not have independent courts, if you do not have a legal system where people are able to actually obtain justice, either through legal aid or being properly represented, if you do not have lawyers who are properly qualified and judges who are able to properly apply the law. It is easy to overlook these basics when we have a very highly developed, indeed a very expensively developed, legal system in this country.

Can a developing country like Vietnam afford a legal system like ours?

Developing an appropriate legal system may also be a lower priority because an independent legal system can get in the way of governments doing what they want to do. It stands between the community and the government and protects the community from the government. That is the very reason why it is such an important, indeed an essential, protection in any political system to ensure that human rights are actually observed.

What is your impression of the Vietnamese legal system? Where is it at now?

Additionally, the approach to law in socialist or communist countries is very different from the approach in more liberal democratic regimes. The law is seen as an instrument of the state rather than a protector of the citizens. That is where it fits into Marxist theories of the role of law and the relationship between law and state.

The legal system had two handicaps then, the war on one hand and the political view of its role on the other?

In developing an independent legal system, to what extent are the Vietnamese responding to external influences?

When foreign investors are deciding whether to invest in Vietnam or any one of many other developing countries one thing that they look for is certainty and security for their investment. They will ask whether the courts are capable of giving a proper independent, impartial, legally-founded decision on any dispute that might arise. If they feel, for example, that the government or the local party is always going to get a favourable decision out of the courts they will be very loathe to invest in that country. So the development of independent courts is a response to the need to attract foreign investment.

As to the substance of these business laws, the economies of the world's countries are increasingly interlinked with global economies and Vietnamese law has to respond to that fact. The problem is that law is often very slow at doing this.

Is legal development an area in which Australian assistance would be particularly welcomed by the Vietnamese?

One area in which Australia has assisted Vietnam is its bankruptcy and insolvency law. Indirectly the Australian Law Reform Commission (ALRC) was part of this. The Australian lawyer involved, Ron Harmer, was an ALRC Commissioner during the 1980s and prepared the Commission's landmark report on insolvency. That report subsequently formed the basis for significant amendments to Australian insolvency laws. Ron Harmer's work has since been taken up in a number of Asian countries. Vietnam in particular has drawn on his assistance directly in revising, and now enacting, insolvency laws.

Someone like Ron Harmer or the French jurists cannot in any way dictate to the Vietnamese what laws they should adopt nor can they be held responsible for the final product. However, it is enormously important that people who come from more tolerant systems, systems that have much more institutionalised protection for human rights, should be working closely with Vietnamese authorities to encourage them to develop their legal system in similar ways.

I think that there is a growing realisation in Vietnam itself that the legal system is undeveloped and needs to be more appropriately developed. There are not very many laws, particularly by our standard. The National Assembly in Vietnam, we were told, only enacts about 10 laws a year. Many of the laws that it is currently enacting are directed towards updating totally inappropriate laws adopted during the previous hard-line period. Modernisation requires not just tinkering but a complete overhaul of the law.

What about laws that lead to people becoming, by our definition, political prisoners'?

The Museum of American War Crimes' in Ho Chi Minh City has a post-1975 section with exhibits which cover attempts to undermine the State. There I saw a glass case full of typewriters, labelled Anti-revolutionary equipment'.

There were a number of instances after 1975 involving armed incursions into Vietnam, principally lead by former officers of the South Vietnamese army. Now I do not think that anyone is seriously suggesting that someone who takes up arms and launches an armed violent incursion into your country cannot be properly dealt with under the criminal law as a criminal offender. But someone who sits down at a typewriter and uses the weapons of words to criticise cannot be considered a criminal, even if the criticism goes right to the basis of the state: which in most of these cases it does not. Criticism like that, by the standards of international human rights law, is completely permissible and tolerable and cannot be considered criminal. Yet the Vietnamese criminal code at the moment is being used to convict and sentence to imprisonment, for lengthy terms, people who are simply writing and expressing their views.

Is there any chance of these provisions being removed?

Beyond rewriting the laws, have there been many reforms to the actual legal structures of Vietnam?

In code systems like the Vietnamese system, the procurator is a very important institution. The procurator is in part a prosecutor but is much more than we understand a prosecutor to be. The procurator is the major investigator of crime as well as the person who supervisors or monitors the observance and implementation of the law, particularly by state authorities. So the procurator has a role of monitoring the conduct of police and prison officials as well as state officials generally. It is a very important institution.

One of the difficulties in one party states like Vietnam is that the party tends to call the tune, especially through the horizontal organisation of state institutions. What that means is that the procurator at the local level will be responsible to the local party people. This makes it very difficult to attack local abuses such as human rights violations and corruption. The procurator may be subjected to an enormous amount of pressure from local party people, severely threatening their independence.

A significant change under the 1992 constitution was to organise the procurator's office vertically. The Chief Procurator appoints people all the way down the line and those people are responsible back up through the line to the Chief Procurator. They are no longer accountable to parallel party structures. This is not to say that all of a sudden the procurator will become a totally independent institution. But certainly it is more independent than it used to be and more capable of exercising appropriate forms of supervision over state institutions and possessing some degree of independence in deciding who to prosecute and who not to.

That is very important in view of their higher conviction rate in code systems, considering that, to a large extent, the determination of guilt occurs during the investigation.

It often seems that these sort of delegations are very one-way affairs - Australians teaching Vietnam a few things. Do you think that there is anything that we could learn from the Vietnamese?

Partly out of pure necessity I suppose, in that they have very rudimentary legal systems.

One of the reasons why our courts are clogged and our legal system is so expensive is that we have lost the ability to resolve many disputes at the local community level. Many of the initiatives in recent years, like community justice centres and alternative dispute resolution, are attempts to recapture those ways of resolving some conflicts.

So in some ways their legal system is ahead of ours in its ability to resolve disputes without having to resort to litigation?

Do we, in this respect, represent something that Vietnam should avoid?

Finally - did you feel that the delegation basically fulfilled its aims? Were you happy with the outcome of the trip?

We went to Vietnam intending to engage in serious discussions on human rights issues, on basic international human rights law, on the effectiveness or otherwise of mechanisms of protection of human rights, on the treatment of individual dissidents, and on the future developments of Vietnamese political and economic systems. Within those objectives the delegation was extremely successful. We did have very frank exchanges, we did obtain more information about dissidents, and we were able to discuss quite openly our concerns about the Vietnamese legal and political system. We have obtained many answers from Vietnamese authorities to many of our questions. There are also many things on which we were not satisfied and which will form the basis for future exchanges between Australia and Vietnam.

Are there any plans for future delegations?

I hope that there will be a continuing exchange of views. This dialogue is very important for developing a much better relationship between our two countries and much better co-operation to promote human rights generally as well as economic ties. I think the dialogue will continue. The delegation was well received by the Vietnamese authorities and I certainly hope they will reciprocate by sending a similar delegation to Australia.