Communist Review - The Resolution of the 13^th Party Congress outlined the central task of building the socialist law-regulated State of Viet Nam, including judicial reform. To realize the Resolution, it is essential that judicial reform be accelerated, prior achievements brought into full play, difficulties and challenges addressed, and judiciary upgraded to the same level as those of the world. This is an inevitable way to meet the Party’s requirements and objectives, satisfy people’s expectation toward a judicial system of increased professionalism, modernity, fairness, strictness, transparency, for the Fatherland and for the everyday people.

Judicial reform in people's courts (hereafter referred to as PC) is aimed at effectively implementing core principles on judicial service; enhancing the quality, performance and reputation of the PC, which exercises judicial power; building a professional, modern, fair, strict, and transparent PC, serving the Fatherland and the people, successfully protecting justice, human rights, citizens' rights, safeguarding the socialist regime, the interests of the State, the lawful and legitimate rights and interests of organizations and individuals. To that end, it is necessary to focus on the following aspects:

1- Clarifying the practitioners, attributes and characteristics of judicial power

A conscious and full awareness of the content, practitioners and features of judicial power is of great significance, both scientifically and practically.

Firstly, concerning the practitioners of judicial power.

Under the 2013 Constitution, the political authority of the state is separated as follows: The National Assembly shall exercise constitutional and legislative powers (Article 69); The government shall exercise executive power (Article 94); the People’s Courts exercise judicial power (Article 102). The division of power is based on the basic functions of each agency rather than activities involved. The fact that the Government and the Supreme People's Court draft and submit bills to the National Assembly does not necessarily mean that the Government and the Supreme People's Court are those who exercise legislative power. Likewise, it is not investigative agencies and procuracies who practice judicial power despite their involvement in investigation process and prosecution order release prior to the trial of a criminal case. Hence, at the constitutional level, the one and only practitioner of judicial power is the court.

Secondly, concerning the comprehension of judicial power.

Judicial power is comprised of the following constituents:

- The right to decide a case and render judgments against criminal offences. These verdicts, in fact, are government punishments against law infringement (deprivation of liberty, deprivation of certain citizenship rights, ban on residence, deportation, probation, confiscation of property, etc.). Under the Constitution and laws of Viet Nam, courts are only entitled to penalty imposition in the name of the Socialist Republic of Viet Nam.

- The right to determine actual controversies arising in society. In practice, there are a number of mechanisms for dispute and conflict settlement such as administrative agencies at all levels, superiors, and grassroots conciliation organizations, etc. Unlike the aforementioned ones, the courts, on behalf of the state authority, do that by making legally enforceable judgments which are binding on stakeholders.

- The right to judge, recognize or deny legal facts related to human rights or those giving rise to, changing or terminating the rights and obligations of stakeholders (such as death declaration; incapacity declaration; paternity declaration; restriction of parental rights to a minor child; recognition or denial of a civil verdict or decision by foreign courts, foreign arbitral awards, etc.). The experience of the majority of countries is that courts are only entitled to coercive measures and other human rights restriction (arrest, custody, detention, exit ban, etc.) and these shall be conducted in accordance with a strict, highly independent judicial proceeding.

- The right to judge the constitutionality and legitimacy of legal documents is meant to ensure the consistent implementation of the constitution and laws nationwide. In many places around the world, judicial review is usually vested in the Constitutional Court or the Supreme Court. That is, the courts not only adjudicate violations of the constitution and law, but also examine and determine whether legal documents are unconstitional and unlawful. In Viet Nam, the overlapped performance of this power among various agencies leads to numerous limitations such as the inconsistency, unprofessionalism, inefficiency and ignorance, resulting in prolonged violations in some localities and detrimental impact on public interests. Besides, the court is charged with interpreting, creating case law, and promulgating resolutions of the Council of Judges of the Supreme People's Court. This also represents a part of the power of the state vested in the courts and exercised by the courts only.

Thirdly, concerning the basic characteristics of judicial power.

State jurisdiction is exercised through court trials under a concrete legal proceeding; verdicts are legally binding on all stakeholders; If judicial judgments, which have fully complied with the procedural process, are found flaw,  they shall not subject to denunciation, only to appeal or protest instead; Once judicial judgments are made, they cannot be arbitrarily changed unless the courts do so by themselves in accordance with procedures prescribed by law; judicial judgments are guaranteed to be enforceable within the national territory and are not  subject to time restriction as prescribed by law; with their state authority, judicial judgments are enforced by a specialized judgment enforcement agency.

2- Guaranteeing the independence of the judiciary

The core principle of “judicial independence under law” is shared by all countries. This shall be guaranteed by the State and society that courts and judges are not subject to any interference in both organizational and operational aspects. To achieve that, some approaches have been discussed by scientists and practitioners as follows:

Firstly, the organization of courts are in line with their jurisdiction rather than administrative units; regional courts are established by merging district-level ones.

Secondly, the organization of specialized first-instance courts depends on the nature and complexity of the cases. Accordingly, these include first instance court on intellectual property (usually there is only one such court in each country); regional administrative court of first instance, etc.

Thirdly, implementing the random assignment of judges and jurors in the trial panel.

Fourthly, rationalizing the administration of judges; independent activities of courts and judges are shielded from administrative branches.

Fifthly, promulgating regulations on judges' participation in social and business activities, which ban judges from engaging in any profit-generating activities except teaching in law training and scientific research institutions. The teaching should last for such a reasonable period of time that do no harm to their judicial competence.

Sixthly, building preventative mechanisms against interference in judicial functioning by making all intervention documents public so that they could be considered by stakeholders.

Seventhly, strengthening the mechanism for protecting judges, and designing regulations against infringement of the judicial dignity.

Eighthly, reforming the mechanism for management, selection, evaluation, appointment, education and training of court staff.

3- Adhering to the principle of publicity, transparency, and facilitating people’s access to judicial information

It has become a worldwide trend and requirement that an open, transparent and pro-people judicial system should be well established. This is particularly noticeable in countries with developed judicial system. Some countries even invent the slogan, saying “Publicity is universality; secrecy is abnormality”. During the judicial proceeding, citizens must be guaranteed to exercise 6 basic rights, namely the right to know; the right to be presented; the right of defense; the right to propose; the right to appeal; the right to complain and denounce.

Solutions to ensure the publicity and transparency of the functioning of People's Court are as follows: Strictly implementing regulations on public trial, unless otherwise decided; reforming judicial administration, building a one-stop court with judicial services available to the people; boosting the application of information technology to carry out some procedural activities via the internet such as receipt of applications, service of papers and documents, notification of application settlement results, examination of evidence, and online adjudication, developing electronic procedural records to further comfort the people, improving operational efficiency and publicity of justice; making regulations and arrangement of courtrooms for the media; publicizing on the court's web portal the following contents: judicial proceeding; plan to bring the case to trial; procedural documents; publicity of the proceedings; trial process; court judgments and decisions; judgment enforcement process; reduction process, etc.

4- Ensuring fair trials and sound litigation

The International Covenant on Civil and Political Rights in 1966 states: “All persons shall be equal before the courts and tribunals. Everyone shall be entitled to a fair and public hearing” (Article 14). In Viet Nam, the 2013 Constitution stipulates: “Everyone is equal before the law” (Article 16); “A person charged with a criminal offense shall be promptly tried in an impartial and public manner by a court within a legally established time limit. In case of a closed trial in accordance with law, the verdict shall be publicly pronounced” (Article 31); “The adversarial principle shall be guaranteed in trials.” (Article 103).

Thus, during the process of building progressive justice in Viet Nam, the principle of “fairness and equality in trial” has been constitutionally approached as a fundamental human right. Violation of this principle is a violation of the human rights defined by the United Nations Convention and the Constitution. Ensuring fairness and equality in trial has a close relationship with the constitutional principle of ensuring litigation in trial.

In the coming time, judicial reform should be accelerated by improving the mechanism for ensuring litigation in trial, further promoting litigation at all court sessions, setting no time constraints on litigation, satisfactorily addressing all issues raised in litigation with recorded judgment, rendering sentence based on the results of the litigation. Continuous judicial education of serving judges is aimed at augmenting their skills in administering contested trials, and delivering persuasive judgments. There must be fairness in the procedure and verdicts. Recently, the outline of courtroom has been changed with the sitting position of prosecutors (the accusers) being commensurate with that of lawyers (acquittals). This courtroom arrangement reflects the principle of fairness and equality in litigation. Only when no discriminatory or unequal behavior is allowed during the trial, can people's confidence in justice and the fairness of the law be gained.

5- Renovating the mechanisms for people's participation in the adjudication process

Citizens’ engagement in governance in general and judicial activities in particular represents characteristics of a progressive and democratic state. Enshrined in the maiden constitution (the 1946 Constitution), the idea of ​​building a “people-based” judiciary was repeatedly affirmed in consequent ones. Democracy, by its nature, is not only the dedication of civil servants serving the Fatherland and the people, but also their participation in and supervision over state activities. The constitutional principle “The first-instance trial of the People's Court is attended by people's jurors” is the mechanism for the people’s direct exercise of state power. Collective knowledge and morality of jurors are critical to the determination of the objective truth, increasing the judges’ confidence in their decision. In the world, there are three popular models of people's justice in the judicial process, namely People's jurors (in Viet Nam, China, etc.); jury (similar to those in Europe, America, etc.); and the combination of the two models (in Russia, etc.).

- A jury consists of people selected by law to participate in the trial and is empowered to determine some issues in the case. The scope of the jury's involvement is almost confined to criminal trials. Jurors did not study the case file in advance, nor did they raise questions to the stakeholders at the trial. Instead, they hear the litigants. The jury has the power to determine whether the defendant is guilty or not guilty and, if guilty, whether or not they deserve clemency. The remaining issues of the case (such as deciding crime, punishment, application of judicial measures, compensation for damage, etc.) are decided by the judge.

- People's jurors are elected, recommended or appointed according to the laws of each country and participate in the first-instance trial of most types of cases (criminal, civil, administrative). People's jurors and judges constitute the trial panel, chaired by the judge. People's jurors study the case files before trial; in principle, they are equal to the judge in deciding issues under the jurisdiction of the trial panel.

In practice, people's jurors have made an important contribution to assisting judges in clarifying the objective truth of the case, making “compassionate and reasonable” judgments, reflecting the will of the people, monitoring from within the adjudication process. However, this mechanism also reveals a number of shortcomings: jurors are basically non-law experts, but they make up the majority of the composition of the trial panel and are equal to judges, leading to a very “burden” for jurors; when the judgment is canceled or modified, the implementation of the current regulations on responsibility and sanctions is only imposed on the judge (removed from office, not re-appointed, etc.), not on the jurors; Civil and economic cases are highly specialized, while the files for trial are prepared and provided by the involved parties, often beneficial to each party, so it is very difficult for jurors to adjudicate this type of case (for criminal cases, records are made by state agencies).

To address the above-mentioned shortcomings, it is necessary to study and renew the institution of jurors in the direction of: Perfecting the current mechanism on people's jurors participating in trials; considering  additional mechanism of the jury to participate in the first-instance trial of criminal cases; clearly defining the competence and tasks of the people's jurors; renovating the structure and composition of people's jurors in the trial panel in a manner consistent with the jurors' professional knowledge; boosting the education and training for people's assessors and devising sound policies; renewing the mechanism of selection, election and management of people's jurors; strictly regulating the random selection of people's jurors to participate in the trial panel; developing a code of ethics, responsibility and coordination relationship of people's jurors; submitting to the National Assembly for promulgation an independent law on people's jurors.

6- Developing and implementing alternatives to some legal activities

When assessing the effectiveness of judicial activities and adjudication, not only the number of cases is counted, the quality of the trial, the trust and confidence of the parties, the consensus of the stakeholders, the situation of public opinion, the cost of the State and society should be taken in to consideration. In an effort to improve the effectiveness of the judiciary, many countries have succeeded in finding and implementing alternative solutions. These measures make real reductions in the length of judicial proceedings, the costs of both the State and society, the number of reach-trial cases, and increase in social consensus. Judicial reform is definitely the process of finding and renewing alternative solutions, namely alternative to proof, alternative to trial and alternative to imprisonment. As these alternatives are tied to court operations, they must be codified.

Regarding the alternative to proof: Many countries have a “settlement negotiation” mechanism, which defines that in case the voluntary confession of offenders is consistent with other evidence and offenders make amends to their victims for the consequences, then they can enjoy some lenient criminal policies (such as penalty reduction, suspended investigation on minors). Several countries allow the recognition of “forensic evidence” that is not obtained in accordance with the procedure prescribed by procedural law (e.g., recognition of criminal evidence incidentally recorded from extraction of public cameras). In Viet Nam, there is no such law in place, thus it takes a lot of time and effort to convert evidence. Many countries recognize the legitimacy of “digital data recovery software” to collect electronic evidence. These are software that have the feature of recovering deleted data in electronic devices (phones, computers, cameras, copiers, etc.) and are only applied to internationally-recognized software.

Regarding the alternative to trial: Mediation in court is one of the solutions to resolve social conflicts without trial. Considering pilot results and legal initiatives of the Supreme People's Court, the National Assembly passed the Law on Mediation and Dialogue at Court. Currently, this Law on Mediation has come into effect, hailed as a humane model. In Viet Nam, mediation is only applicable to criminal offenders aged under 18 (Article 94, Penal Code). By contrast, this mechanism has been widely adopted in many countries, aiding guilty party to make reparation to the victim for their offending and to take steps to stop the case soon. This may offer a useful suggestion for Viet Nam.

Regarding alternatives to imprisonment: Vietnamese law allows alternatives to imprisonment such as conditional early release of prisoners; no execution of someone who has been convicted of embezzlement, or those who accept bribes, but has returned three-quarters of his criminal assets and has actively cooperated with the authorities or had made great achievements. In many countries, to reduce the prison overcrowding, many alternative measures have been taken such as home detention; fines instead of custodial sentences applicable to some crimes using money as a means and purpose of crime (usury, illegal use of property, gambling, etc.) accompanied by other strict conditions; non-custodial sentences for minors and probation, etc.

It is common in countries with a developed judicial system to actively develop alternatives to proof, to trial and to imprisonment. In the coming time, Judicial reform in Viet Nam should be conducted by boosting research, exchanging experiences, and seeking new solutions towards rationalizing the burden of proof, reducing the pressure of judgment enforcement, limiting the opening of court sessions while still quickly and effectively resolving cases. Only then will Uncle Ho's teachings, quote, “high quality of trials is good, but low frequency of trials is better” be fulfilled.

7-  Boosting education and training, renewing mechanisms for remuneration, examination scheme, and appointment of judges; promoting professional discipline

Building a clean and strong court must be associated with the building and rectification of the Party in the People's Court. Only when there exist a good team of party members, will courts at all levels have a contingent of good judges. After all, the quality of judicial activities and the reputation of the court depends on court staff, especially the judges. In the coming time, it is necessary to continue to improve the quality of education and training of court officials in a practical manner; apart from basic knowledge of law, society and economy, adjudication and litigation skills; skills in applying law, including substantive law and procedural law; skills in building court documents, especially lawful and persuasive judgments and decisions should be paid more attention. Both judges and people's jurors should get more education and training. Forming a system of professional training textbooks and documents of the Supreme People's Court's Judges' Council on case law, legal interpretation, and review of trial practice. Facilitating judges, court officials and jurors’ free, unlimited access to these documents. Organizing examinations to select and raise the rank of national judges in a strict and substantive way. Well implementing the Code of Ethics and Conduct of Judges. Strengthening ideological and political education, raising the sense of responsibility, pride, love and professional bravery of the judges. Enhancing the quality of staff work (arrangement, assessment, planning, mobilization, rotation, appointment, etc.). Regulations on handling of responsibilities of persons holding judicial positions in the People's Court should be strictly implemented. Upholding professional discipline, strengthening inspection, examination and handling of violations

8- Building sound mechanisms for ensuring the respect and protection of the courts; rationalizing reasonable remuneration and policies for court officials

Building sound mechanisms for ensuring the respect and protection of the courts is meant to uphold the political position and responsibilities of the judicial authority, and guarantee judicial independence under law. Looking at other countries, many have enacted laws on “protecting judicial authority”. Accordingly, such offences as causing disorder in the court hearing; obstructing adjudication activities; insulting the court are defined as crimes. At the same time, in order to strictly implement the principle of two levels of trial (first instance, appellate court), to avoid the abuse of the cassation and reopening mechanism, which is in danger of becoming the third trial level, it is necessary to rule out and strictly handle negative phenomena affecting adjudication activities such as: fake proceedings (fake lawsuits, forging case files, fake evidence, etc.); deliberately clinging to the proceedings (complaints and denunciations have been resolved many times by many levels and branches independently and uniformly, but still intentionally repeat the old contents without new documents and evidence); malicious proceedings (creating a situation to trap judicial officials, then denounce); inconsistent proceedings (inconsistencies in reporting and providing documentation).

Over the past time, Viet Nam has focused on perfecting regulations on detecting and handling violations and crimes. However, humble attention has been paid to the respect and preservation the sanctity of the judiciary, the exclusion of acts that infringe on the dignity of the judiciary. In the time to come, it is of importance consider other countries’ experience, study and amend the Penal Code according to the provisions of law. criminalizing some acts that obstruct legal proceedings, offend the judicial authorities, intentionally falsify records and documents in order to prolong the proceedings at the cost of the State and society and legitimate rights and interests of stakeholders. At the same time, there should be measures to ensure the safety of procedure-conducting officers and their relatives, especially in serious and dangerous cases.

Devising the remuneration of judges and magistrates. In most countries, judges are stipulated in law as a special profession, so the remuneration of judges and magistrates must remain commensurate with their professional responsibility and high public duty, so as to preserve judicial independence and impartiality. Japan and the Russian Federation even have their own laws on salary and remuneration for judges. In Viet Nam, the salary of judicial positions in the courts in general and of judges in particular is regulated as same as civil servants in administrative agencies, which is not suitable with reality and international practices. Income reform in the coming time should address existing problems in a way that salary is commensurate with adjudication work, especially with the judicial titles (judges, examiners, court clerks).

9- Strengthening the leadership of the Party and the supervision of elected body

Ensuring the leadership of the Party and the supervision of the elected bodies is a matter of principle for the People's Court to well complete the assigned tasks. Measures to strengthen the leadership of the Party and the supervision of the elected bodies include:

Firstly, renovating the grassroots party organization in the People's Court in accordance with the reform of the organization of the court system towards independence and rationality with administrative boundaries; improving professional expertise, upholding party discipline; arranging chief justices at all levels to join the party committee at the same level with a higher position than the current one and suitable for each locality.

Secondly, closely linking the Party building work with the People's Court construction, concretely conducting the Party's resolutions, especially those on judicial reform; resolutions on Party building and rectification; Directive No. 05-CT/TW of the Politburo, “On further studying and following Ho Chi Minh's thought, morality and style”; on the responsibility of playing role model; set an example of senior leaders; on power control, etc.

Thirdly, enhancing the supervision of elected bodies and socio-political organizations over the activities of the People's Court; maintaining the regular and unplanned report of the Supreme People's Court and the local People's Courts to the National Assembly and the People's Council. Upholding internal rules and discipline.

Fourthly, adopting the slogan “publicity universal, secrecy is individual”; Establishing regulations on publicity and transparency of court operations so that people can access information and supervise the judiciary. Widely applying information technology to increase the transparency of the courts. Strengthening the inspection of the implementation of the principle of publicity by courts at all levels. Facilitating media agencies’ access to trials. Judicial publicity serves as a preventive measure against negativity, and a factor for transparent courts.

10- Building digital courts

The rapid development of information technology has posed both opportunities and challenges to the performance of courts Undoubtedly, old-fashioned way will fail meet the requirements. Thus, it is necessary to utilize information technology to accelerate the digital transformation process and complete the construction of the e-court by 2025.  The following tasks should be focused on:

Firstly, developing electronic court (hereafter referred to as e-court) is aimed at improving the capacity of court administration on digital platform. Accordingly, universal application of information technology will help the courts to manage the following areas: Management of procedural activities; Human Resource Management; digital records; education and training; database; facilities, equipment and finance.

Secondly, developing e-court is meant to offer better  judicial services to citizens especially the following services: lawsuit petitions acceptance and delivery, documents and evidences and issue, notification of court documents via electronic means; online registration for issuance of copies of judgments and documents in case files; online payment of court fees and fines; information search; provision of tried judgments and similar legal situations analysis software to assist people in making judicial decisions and judgments; provision of legal consulting services.

Thirdly, developing e-court is aimed at boosting judicial efficiency and quality. Currently, the Supreme People's Court has put into use the “Virtual Assistant” to provide intelligent services to support judges with the following features: popularizing relevant legal system; similar legal situations that have been summarized by the Judicial Council of the Supreme People's Court; relevant precedents; similar judgments that have taken legal effect; assist in planning the settlement of cases, making and managing electronic case files; automatic creation of legal documents according to templates; support analysis, verification of information and detection of errors; coding, posting judgments and decisions on the court's portal, among others.

Fourthly, developing e-court is meant to carry out online proceedings, including: Filing lawsuits, providing evidence, making online declarations; paying court fees, and fines for violations online; organizing online conciliation sessions in civil cases and dialogue in administrative cases; online trial of first instance and appellate criminal, civil and administrative cases; organizing online sessions to deal with civil matters; delivery, online notification of procedural documents, etc.

Fifthly, developing e-court contributes to enhancing publicity and transparency in court functioning. On digital platform, courts strive to publicize the following 7 areas: Legal system, resolutions of the Supreme People's Court's Council of Judges, case precedents, etc.; the assignment of officers to handle the case; progress of handling and settling the case; the trial process at the court hearing; trial results; the process and results of judgment enforcement; process and results of judgment exemption and reduction.

Sixthly, developing e-court helps connect courts with other digital platforms, thereby allowing the court to exploit national databases to better serve their duties, and at the same time to share and maximize the usefulness of the People's Court's database to serve the process of social construction. digital economy, improve national governance efficiency./.

This article was published in the Communist Review No. 985 (March 2022)