VIETNAM: Ongoing evolution of the role of

UNCLAS SECTION 01 OF 04 HANOI 001437

SIPDIS

SECDEF WASHDC//ISA/ACHAO//
CDR USPACOM HONOLULU HI

DEPARTMENT FOR EAP/BCLTV, DRL, AND DRL/PHD

E.O. 12958: NA
TAGS: PGOV PHUM ECON ETRD EINV SOCI VM
SUBJECT: VIETNAM: Ongoing evolution of the role of
attorneys

Ref A) HANOI 1411
Ref B) HCMC 0499


1. (U) Summary: The gradual process of judicial reform
and development of a "rule-of-law" state in Vietnam have
contributed to the rise in the prominence of lawyers. The
just-concluded Nam Cam trial (ref b) showcased pilot changes
in court proceedings that are supposed to put defense
attorneys on a more equal footing with prosecutors. A
revision to the Criminal Procedure Code expected to pass the
National Assembly in December should institutionalize these
changes and give defendants the right to have an attorney
present from the time of initial police questioning. (The
current system only guarantees access from the time a
defendant is formally charged -- very late in the
investigation process.) Vietnam's legal culture has
traditionally been strongly biased in favor of prosecutors
and police, and citizens have tended to avoid litigation as
much as possible. Continuing and substantial improvements
in the ability of attorneys to protect the rights of their
clients will hinge largely on overcoming a system stacked
against the defense and still dominated by the Communist
Party. End Summary.

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Judicial Reform, Lawyers, and the "Rule of Law" State
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2. (U) "Judicial reform" in Vietnam describes a laborious
but steady process -- in many cases supported by foreign
funding -- that is promoting a larger role for lawyers along
with the development of the overall legal and judicial
system. The legal profession does not have a longstanding
tradition in Vietnam; there was essentially no formal legal
training in Vietnam from 1960 until 1979 (ref a).


3. (U) According to Professor Luu Van Dat, Vice President
of the Vietnam Lawyers Association (VLA),for many years
after 1945, "People's Advocates" (Bao Chua Vien Nhan Dan)
represented defendants during court trials if approved in
advance by the court. The presumption was that anyone with
common sense -- and, likely, with demonstrated loyalty to
the Party and state -- ought to be able to handle such
cases. Professor Le Hong Hanh, Vice Rector of Hanoi Law
University (Vietnam's largest law school),confirmed to
poloffs that most judges before 1990 did not even have a law
degree; they were appointed on the basis of their
"achievements" (and, presumably, Party record).

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Becoming a Lawyer
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4. (U) As war-time concerns faded in the mid- to late-
1970's, the need for legal expertise became increasingly
apparent, according to several Vietnamese legal experts.
While there were a handful-- such as the VLA's Dat -- who
had studied under the French prior to 1945, the relatively
few Vietnamese law students matriculated mostly under
scholarship in Eastern-bloc countries.


5. (U) In 1979, the GVN established Hanoi Law University
(HLU). Initially, HLU concentrated on training students who
would become judges and prosecutors, according to Professor
Hanh. The lawyer's role was otherwise "very insignificant"
under central planning, he added. The shift towards a
market economy raised the demand for legal training,
Professor Hanh noted. Other law faculties were created in
Ho Chi Minh City, Dalat, Hue, and elsewhere (ref a). Demand
for lawyers grew rapidly from 1992 to 1999, but subsequently
leveled off somewhat.


6. (U) HLU, the largest and most prestigious Vietnamese
law school, currently receives about 38,000 admissions
applications per year but has a student body of only about
4000 undergraduates and 300 graduate students. Professor
Nguyen Ngoc Chi of the law faculty at Hanoi National
University (HNU),numbered his students at almost 2000,
including about 850 part-timers, and 180 graduate students.
Professor Nguyen Dang Dung at HNU noted that most law
graduates now expect to work in the commercial sector as
specialists on contracts and international trade. Economic
and commercial law courses are also currently the most
popular at HLU, because students hope to parlay them into
jobs in the commercial and private sector, according to
Professor Hanh. Demand for these courses outstrips
available seats, so enrollment is based on academic records
and admission tests. However almost all of these courses
are still taught by Eastern Bloc trained professors who
themselves have never had international standard training in
these areas. As one law student commented to Econ
Counselor, a Marxist-Leninist teaching commercial law seems
to defeat the purpose. Serious students of these subjects
frequently seek graduate study overseas. HLU Vice Rector
Hanh conceded that very few of his faculty members have had
time for further education. The U.S.-Vietnam Trade Council
has obtained private funding to work with the Ministry of
Justice (MOJ) and several law universities to help develop a
modern legal curriculum. Embassy and the USAID-funded
Support for Trade AcceleRation (STAR) Project are looking
for ways to complement that work. Ref A described current
law school curriculum in detail, including the required dose
of Communist/Ho Chi Minh ideology and indoctrination about
relations between the State/Party and the law. A bachelor's
degree in law is now a requirement to become an attorney,
prosecutor, or judge; trial attorneys as well as and judges
and prosecutors now must meet additional requirements.

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The Legal Profession
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7. (U) Types of Lawyers: Legal professionals in Vietnam
are referred to as "luat gia." They may join the Vietnam
Lawyers Association (VLA),which now has about 30,000
members, according to VLA Vice President Dat. Their ranks
range from the GVN's Chief Procurator down to minor district
court functionaries, as well as holders of bachelor's
degrees working in the private sector. A more specialized
subset of "luat gia," called "luat su," include primarily
prosecutors, judges, and trial attorneys. Dat estimated
their numbers nationwide at only 2,500; they are also
eligible for VLA membership.


8. (U) Bar Association: The National Assembly Standing
Committee authorized the Vietnam Bar Association's
establishment in 1987. However, it was only in 2002 that
Vietnam instituted an exam for admission to the Bar, after
the NASC revised the Bar's statute (authorizing ordinance)
in 2001. Several hundred would-be attorneys took the first
exam in 2002. All must first take a six-month bar exam
preparation course at a Ministry of Justice training school
(ref a),following graduation from a university-level law
faculty. Since the requirement is new, the course's
curriculum is still under development, according to HNU's
Dung, who added that the course had been weighted towards
criminal law procedures. There has been considerable
debate, according to Professor Dung, over both the course's
content and the methods used to teach it. According to the
school's director, Dr. Phan Huu Thu, the school charges
tuition (he declined to reveal the amount),but the GVN pays
for attendees who are already GVN cadres. Bar association
membership increased dramatically from about 1,800 in 2001
to the current level near 2,500 (still only 1 bar member per
32,000 inhabitants). The VLU's Dat explained this by
recognizing "we need more attorneys." Only two years ago,
the Vietnam Bar Association spoke of the need to ensure the
"quality" of attorneys when explaining why membership was so
limited and was essentially "by invitation" only (usually
based on Party service). Not all VBA members are welcoming
this change to an at least nominally merit-based system.


9. (U) Legal Careers: Before 1994-5, the GVN employed
almost all law school graduates, according to Professor
Hanh. Since then, however, most graduates have gravitated
instead to the private sector, with its generally better
salaries and benefits. The VLA's Dat said that the majority
of those who become trial attorneys specialize in criminal
law. The remainder practice civil law, especially related
to family, marriage, land, and property issues. There are
"a few" administrative lawyers, who primarily handle
complaints against the state. (Note: recently-passed
legislation to help victims of injustice obtain redress from
the state may lead shortly to an increase in these numbers,
although many questions remain about the implementation of
that law, as septel will describe. End note.) Dat added
that there is an even smaller number of economic, trade and
commercial law specialists, and only "four or five"
Vietnamese intellectual property rights attorneys. Some GVN
ministries face a serious shortage of qualified attorneys.
The Ministry of Trade, for example, has no practicing
qualified trade attorneys. Almost all Vietnamese lawyers
practicing in these areas have obtained additional training
abroad, primarily in Australia and the U.S.

10. (U) According to various contacts, most Vietnamese
citizens associated courts and attorneys only with
"criminal" activities and charges, and thus tried to avoid
them as much as possible. There is also a widespread
assumption, especially among urban residents, that the
courts are tools of the Party and State and that average
defendants or plaintiffs are at a disadvantage. Rumors of
corruption among judges also lessen popular confidence in
court proceedings. The idea that attorneys can be involved
with economic and commercial issues is particularly
"unfamiliar" to most Vietnamese, according to the VLA's Dat.
The clients of the few existing economic and commercial
lawyers are almost exclusively foreign entities, he added.
Many Vietnamese citizens prefer -- if absolutely necessary -
- to use "arbitrators" instead of lawyers. There are about
100 such GVN-licensed arbitrators, including Dat himself.

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A Sea Change in the Making?
--------------


11. (U) However, integration with the rest of the world is
now changing how Vietnamese view lawyers, Dat claimed. An
extremely important change, he commented, relates to
criminal lawyers. The current Criminal Procedure Code does
not adequately protect the rights of defendants, according
to Dat, although it does formally stipulate that they are
not deemed guilty until convicted. As ref b reported, the
Nam Cam case was one of several pilot cases testing new
court procedures. The most important development was the
growing equality of defense attorneys and prosecutors in
front of the judge. Dat pointed out that this would not be
easy for prosecutors, who have long been used to being in
the driver's seat in the courtroom. Judges too, still need
to learn how to moderate the debate and will "make mistakes"
for some time to come, he predicted.


12. (U) The National Assembly debated revisions to the
Criminal Procedure Code during its ongoing session, and
expects to pass the revised Code at its next session in
December. According to Dat and press reports, the code's
new draft contains language that would institutionalize
these pilot changes in trial procedures, including a
requirement that individuals have access to an attorney from
the beginning of a case, i.e., at the time of initial
questioning by police. (Currently, attorneys only gain
access after the prosecution and police conclude their
formal investigation, which can take months or more than a
year.) The Procuracy took the lead in drafting of the new
Criminal Procedure Code, but Dat noted that the VLA had been
formally invited to comment on the draft. While he admitted
that the Procuracy will find the "psychology" of these
procedural -- and conceptual --changes "difficult," he
claimed that many in the Procuracy were "quite progressive"
on the issue.


13. (U) Toward the end of the Nam Cam trial, different
local newspapers carried stories about statements reportedly
made by some defense attorneys. At least one article in a
police-owned newspaper called for the prosecution of one
defense attorney who had attacked the methods and
credibility of some of the investigating officers in the Nam
Cam case. Other articles, including one written by a
retired Supreme Court Chief judge and another on behalf of
the Bar Association, defended the legality of the lawyers'
actions, although they admitted that the tactics were rather
"difficult" to accept.


14. (U) Foreign lawyers: As previously reported, over the
last few years the GVN has realized through its attempts to
implement the U.S-Vietnam Bilateral Trade Agreement and the
World Bank and IMF agreements, that legal reform underpins
its entire reform effort. Vietnam's BTA obligations are
now also a major driving force behind reform of the legal
profession in Vietnam. The BTA calls for liberalization on
restrictions on activities of U.S law firms. The MOJ, with
significant assistance from STAR, is currently revising the
1998 decree that regulates the operation of foreign law
firms and lawyers in Vietnam. Revision of this decree is
intended to bring Vietnam into closer compliance with its
BTA commitments to liberalize the legal services sector and
bring Vietnamese law into closer harmony with international
law and practice.


15. (U) The current draft of the revised law on foreign
lawyers does expand the scope of foreign lawyers activities
but still restricts them and Vietnamese lawyers who work for
them from actually arguing cases in court even if the
Vietnamese lawyer has passed the Bar. Contacts in the legal
profession have indicated that the VBA is pushing for this
continued restriction in order to force foreign law firms to
partner with a domestic firm in order to take cases to
court.


16. (U) Comment: The role of lawyers is very slowly
evolving closer to international norms, to what appears to
be the clear satisfaction of as least some in the Vietnam
Lawyers Association and among the ranks of Hanoi's law
professors. Other elements, including the police and
probably some judges, likely remain uncomfortable with the
greater legal and procedural complexities these developments
will represent. The USG has in previous Human Rights
Dialogues called on the GVN to allow defendants to have
access to attorneys from the time of detention; the proposed
revised Criminal Procedure Code would be a welcome step
forward if adopted by the NA, as is probable given the
publicity devoted to the current debate. One big question
will be the willingness of the Communist Party of Vietnam to
end its behind-the-scenes oversight of the court system and
allow the kind of more genuinely independent legal system up
to international standards that Vietnam needs to accelerate
its integration into the international economy and to
attract additional foreign investment.
PORTER