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Rethinking the Role of Judicial Independence in Socialist-Transforming East Asia

Published online by Cambridge University Press:  17 January 2008

John Gillespie
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Abstract

This article argues that judicial independence is a poor indicator of the capacity of courts effectively to resolve commercial disputes. Judicial power is a more accurate measure because it assesses whether courts have sufficient jurisdiction, discretionary authority and enforcement powers to make decisions over socially meaningful commercial problems. In fact, judicial independence may reduce the power of newly emerging commercial courts in socialist-transforming Asia, which need politics to protect them from interference by powerful governments and private investors. This article explores the trade-offs between judicial power and political patronage by inquiring into the circumstances where patronage may slide into interference. It also investigates the conditions in which judges are most likely to acquire or arrogate discretionary powers to understand politics on their terms. Finally, this article analyses the highly polarized views in this region about what constitutes valid judicial determinations. The message for international agencies contemplating judicial reforms is that reducing political influence and promoting law-based decisions will not uniformly generate popular support and legitimacy for courts.

Type
Articles
Information
International & Comparative Law Quarterly , Volume 56 , Issue 4 , October 2007 , pp. 837 - 870
Copyright
Copyright © British Institute of International and Comparative Law 2007

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52 Toa An Nhan Dan Thanh Ha Noi, Bao Cao Ket Qua 4 Nam Thuc Hien Nghi Quyet So 08-NG/TW Ngay 2.1.2002 [Report on the Results of Four Years Implementation of Resolution No 08–NG/TW Ngay 2 Jan 2002] (Hanoi, 3 Nov 2005).

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60 Politburo Resolution No 49 NQ/TW on the Strategy of Judicial Reform to 2020.

61 See Peerenboom, R, ‘What We Have Learnt about Law and Development? Describing, Predicting, and Assessing Legal Reforms in China’ (2006) 27 Michigan J of Intl L 823, 844–7.Google Scholar

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63 Discourse is taken to mean ‘all forms of spoken interaction, formal and informal, and written texts of all kinds’, especially political, economic, moral, cultural and legal modes of communication’. Potter, J and Wetherell, M, Discourse and Social Psychology (Sage Publications, London, 1987) 7.Google Scholar

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70 Interviews with judges.

71 Case No 57, First Instance Criminal Court, Thai Binh Provincial People's Court, 8 Mar 2004. Interview with the defence counsel, Hanoi, Mar 2005.

72 Criminal Code 1999, 181.

73 Art 16 of the repealed 1926 Soviet Criminal Code provided that ‘if any socially dangerous act is not directly provided for by the present Code, the basis and limits of the responsibility for it shall be determined by application of those articles of the Code, which provide for crimes most similar in nature’. Also see Dinh, Van Que, Phap Luat Thuc Tien va An Le [Legal Practice and Precedent] (Truth Publishing, Hanoi, 1999) 181–7.Google Scholar

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75 In a recent survey district court judges admitted they routinely defer to the opinions given by local government bodies. See UNDP (n 69) 298–300. Also see Qianfan, Z, ‘The People's Court in Transition: The Prospects of the Chinese Judicial Reform (2003) 12 J of Contemporary China 69–101.Google Scholar

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77 This case study is based on interviews with Nguyen Thi Loi, Deputy Chief Judge, Civil Division, Hanoi People's Court, Hanoi, Apr 1999 and Sept 1999, and the transcript of the first instance judgment Case No 41, 16–19 Oct 1998.

78 Art 751(e) of the Civil Code gives authors rights to ‘protect the integrity of their work and permit or not permit other persons to alter the content of the work’.

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85 The State Bank (Vietnam's central bank) promulgated Decision No 711, 25 May 2001 and Decision No 1233, 26 Sept 2001, outlining the circumstances in which State-owned banks can issue deferred LCs.

86 For example, the Hyosung Corporation sued the Vietnam Commercial Joint Stock Bank in the Ho Chi Minh City People's Court in May 1998 for failing to honour an irrevocable LCs. See Chi, K, ‘Potential Quicksand’ [1998] Vietnam Economic News 18–19.Google Scholar

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89 Interviews Tran Thi Hai, Chief Judge, Civil Jurisdiction, Dong Da District Court, Hanoi, Sept 1999, Aug 2000; Chung Lam, Chief Judge, Hoan Kiem District Court, Hanoi, Mar 2004.

90 The author observed five cases in the Vinh Phu Provincial Court in 1994 and three cases in Civil Division of the Hanoi People's Court in 1998 and four economic, civil and labour cases in the Hanoi City Court during March and April 2006.

91 The judge erroneously referred to the superseded 1980 Constitution which provide a State guarantee to provide housing. Tu Liem People's Court, Case No 52/DSST, 2 Oct 1995.

92 Interviews with Hoang Ngoc Hien (n 88).

93 Hanoi People's Court, Case No 20-PTDS, 31 Jan 1996.

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96 See Resolution No 49-NQ/TW June 2006 that instructress the SPC to ‘determining the implementation of law and developing judicial precedents. See JICA, ‘Vietnam Japan Joint Research on the Development of Judicial Precedents’ (Hanoi, 2007) 203–4.

97 eg, the Annual Report in 2000 gave economic court judges doctrinal rules to distinguish civil and economic cases. See Toa An Nhan Dan Toi Cao (Supreme Peoples Court), ‘Giai Dap Mot So Van De Ve Hinh Su, Dan Su, Kinh Te, Lao Dong, Hanh Chinh va To Tung’ [Annual Report on Criminal, Civil, Economic, Labour, Administrative and Procedural Laws] (1 Feb 2000) 63–64.

98 See Qianfan, Z, ‘The People's Court in Transition: The Prospect of the Chinese Reform’ (2003) 12 J of Contemporary China 69–101.Google Scholar

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100 Judges in large cities have applied the reforms more than their counterparts in rural and remote areas. See UNDP (n 69) 256–7, 262–5.Google Scholar

101 Comments on this case are based on interviews during March, April, and October 2006 with lawyers from N H Quang & Associates, the law firm that represented the plaintiff.

102 See Civil Procedure Code 2003, Arts 81–3. See Nguyen, Phu Son (n 62) 29–30.Google Scholar

103 Pre-trial conciliation is compulsory before economic and civil court trials. Civil Procedures Code, Art 180.

104 This was a controversial legal point because the Civil Code 1995 did not in legal theory govern economic contacts. Since this case was decided the revised Civil Code 2005 now specifically applies to economic contracts.

105 In some cases, lawyers arrange for judges to attend seminars and informal workshops that explain complex doctrinal issues, such as foreign legal protocols, electronic commerce, or international banking law.

106 See generally Nicholson, P, ‘The Vietnamese Courts and Corruption’ in Lindsey, T and Dick, H (eds), Corruption in Asia (The Federation Press, Leichhardt, 2002) 215–17.Google Scholar

107 Lawyers interviewed say that judges use their associates as go-betweens to solicit bribes from litigants. A practice has arisen where judges return bribes to loosing parties.

108 See Peerenboom, (n 45) 295–8.Google Scholar

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110 Socialist legality does not recognise customary law. See Le Hong, Hanh, Giao Trinh Ly Luan Nha Nuoc va Phap Luat [Textbook on Theories of State and Law] (People's Police Publishing House, Hanoi, 1998) 291–325.Google Scholar

111 See Quang, N Hung and Steiner, K, ‘Ideology and Professionalism: The Resurgence of the Vietnamese Bar’ in Gillespie, J and Nicholson, P (eds), Asian Socialism and Legal Change: The Dynamics of Vietnamese and Chinese Change (Asia Pacific Press, Canberra, 2005) 198–200.Google Scholar

112 See Gillespie, J ‘Changing Concepts of Socialist Law in Vietnam’ in Gillespie, J and Nicholson, P (eds), The Diversity of Legal Change in Socialist China and Vietnam (Asia Pacific Press, Canberra, 2005) 45–75.Google Scholar

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114 Interviews Dang Quang Phuong (n 49).

115 World Development Indicators, World Bank 2005 <http://www.devdata.worldbank.org/wdi2005/Table53.htm>. A recent survey showed that lawyers believed that only 24 per cent of court orders in commercial cases were successful. Leadco, (n 29) 59–60.Google Scholar

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118 See Ordinance on Residential Housing 1991.

119 For discussions about solving housing disputes see Tuoi Tre (23 June 1996); Tran Quang Minh, ‘Lay Lai Nha O Vang Chu Ma Nguoi Khac Dang Ky Su Dung’ [June 2000] Nhan Dan, <http://www.nhandan.orgvn/vietnamese/phapluat/137.html>.

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125 Interviews with Hoang Ngoc Hien (n 88). Also see Ngoc, D Thi ‘Tong Hop Cac Noi Dung Co Ban Cua Hoi Thao “Van Hoa Tu Phap”’ [Major Contents of the Conference ‘Judicial Culture’] [2001] Thong Tin Hhoa Hoc Phap Ly 13–32.Google Scholar

126 Teubner, G, ‘Alienating Justice: On the Surplus Value of the Twelfth Camel’ in Priban and Nelken (n 65) 23.Google Scholar

127 See UNDP (n 30) 3. Similar results were found in a more recent survey about commercial courts. See Leadco, (n 29) 63–4.Google Scholar

128 McMillan, and Woodruff, (n 29) 1285–6Google Scholar. A more recent study about courts found that only 35 per cent thought that courts would fairly and impartially resolve disputes. See UNDP (n 30) 14–15.Google Scholar

129 See, eg, Trochev, A, ‘Implementing Russian Constitutional Court Decisions’ (2002) 11 East Eur Constitutional Rev 95–103.Google Scholar

130 See Cooney, S, ‘The Effects of Rule of Law Principles in Taiwan’ in Peerenboom (n 23) 424–7Google Scholar; Pech, L, ‘The Rule of Law in France’ in Peerenboom (n 23) 89–98.Google Scholar