I’ve spent the last two and a half days trying to figure out exactly what the courts do in Vietnam. I’ve come to the conclusion that their role is ill defined and that on purpose. I read through the Law on Promulgation of Legislative Documents, the Law on People’s Courts, the Civil Procedure Code, and the Constitution. I still have to look at the more recent legislation outlining when a court case attains precedential value, but I suspect I won’t find anything more useful there.
I’ll start with the Constitution of Vietnam. The judiciary conducts judicial acts. It is not assigned a specific verb or given specific duties and responsibilities like the National Assembly or the Government are. It is not tasked with anything other than–at the Supreme Court level–ensuring that the judiciary “applies” the law consistently. Perhaps the largest onus placed on the judiciary in the Constitution is that the courts must “only obey the law.” This language is repeated throughout other legislation. They are not assigned the task of interpretation that is given to so many other judicial branches throughout the world.
Interpretation, in fact, is reserved for the Standing Committee of the National Assembly. It is this small group of executives that are given the responsibility of interpreting the Constitution, the law, and decrees. The courts must simply “apply” it. The judicial branch is, however, given the right to question administrative rules or procedures that are seemingly contradictory to the constitution or the laws. They may not offer interpretations, however, but must refer the legislation up the chain until it reaches the Standing Committee who have a month to address the issue before their silence acts as a veto of the contradictory rule.
And that’s it. I haven’t been able to find any other legislation directing the judiciary on what it actually does. There may be guidance from the Supreme Court–which I have yet to consult–but something deep inside me says that even here, the courts won’t be terribly specific about the verbs involved in the courts. If there isn’t any legislation provided covering an issue, the courts can turn to the methods for filling in the blanks I discussed here. But what they do with the additional sources of law remains a mystery.
Why is this?
I don’t want to go into too much depth on this because my thoughts might land me in hot water, so I’ll simply say it likely has to do with the desire for monopolizing power in the system. To spread the ability to interpret the laws and to then enforce those interpretations spreads the power out, and could eventually threaten the place of those at the top. This is different from Civil Law systems–the French one being the one upon which Vietnam’s laws are primarily based–who allow the courts to interpret the law, though they do not allow such interpretations to carry forward from one set of facts to the next.
But in Vietnam, the judiciary seems more akin to executive power (as it is focused on enforcement rather than interpretation), the closest thing to an actual duty being that it “apply” the law without definition or guidance as to what this entails. This could also be because of a lack of trust in the judiciary. As a developing country, Vietnam still struggles with judicial competency, the courts subject to inefficiencies, corruption, and misunderstandings. To entrust in them the ability to act more than simply as policemen, to apply the law, might be something of which the National Assembly is leery.
Finally, this continued obstinacy against providing specific tasks to the judiciary may be a stop gap against reform. While on one hand the National Assembly is busy bowing to international business lobbies like AmCham and EuroCham who continually seek reforms in legislation, they preserve the ability to interpret their reforms in the hands of a small committee who is appointed–not elected–who can give meaning to the law however they want. And by obfuscating the judiciary, they also create a system where those changes can be controlled by higher ups rather than at the grassroots level.
It’s an interesting conundrum. What it means for business people investing in Vietnam is that they can’t rely on the courts for yet one more reason, a lack of clarity as to responsibility. If it wasn’t enough that they struggled with accountability and competence before, they also fail in the department of job descriptions. I have to continue the common recommendation, then, that foreign investors seek to apply alternative dispute resolution clauses in their contracts–if reasonable to do so–and avoid the Vietnamese courts if at all possible.