Luận án tiến sĩ Luật học: A comparative study of the systems of review of administrative action by courts and tribunals in Australia and Viet Nam: What vietnam can learn from Australian experience

A COMIARATIVE STUDY OF THE SYSTEMS OF REVIEW ΠADMINISTRATIVE ACTION BY COURTS AND TRBUNALS IN AUSTRALIA AND VIETNAMWHAT VIENAM CAN LEARN FROM AUSTRALIAN EXPERIENCESubmitted byNguyen Van

A COMIARATIVE STUDY OF THE SYSTEMS OF REVIEW ΠADMINISTRATIVE ACTION BY COURTS AND TRBUNALS IN AUSTRALIA AND VIETNAMWHAT VIENAM CAN LEARN FROM AUSTRALIAN EXPERIENCE

Submitted byNguyen Van QuangLL.B, LL.M (Hanoi Law University)

A thesis submitted in total fulfilment

of the requirements for the degree of

Doctor of Philosophy

School of LawFaculty of Law and Management

La Trobe UniversityBundoora, Victoria 3086

Australia

April 2007

] Introducing Administrative Law Jurisdiction to Vietnam’s People’s Courts:Issues and ProblemS cence eee eee nee nnn eee EEE Ee EEE EEE EE Ete l

Il Reforming the Current System of Review of Administrative Actions tnVietnam: ‘Comparative Law’ as a Tool of Legal Reform 3

HI Why the Australian Model? ccccssssccccsssscneeeeeecereessesresesssaeuessssersssssessaseesetes 4

TV THESIS SIFU UIT suersennsan s 250100 snmemamenmmimmmmnemannns 5 8.8 63 8 k8 Cones ed 093143004000999 7Chapter One: Methodological Issues: Comparative Law and Legal Transplantation

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1 Comparative Law: a Method for the Study of LaW cài 10

II How To Compare Law: a ‘Law in Context Approach)” « 13

II Comparative Law and Lega! Reform: Legal Transplantation 17

A Legal Transplantation: Possible or ImpossIble? +<c<<-c<+ 17

B Legal Transplantation: How to Successfully Transplant Law? 21

and Constitutional Background - - -ccc cn nén khe ke 30

Wf<GỔdHGHDH: ii ki ienaki tá g5 tà rà khi hanESGANESES code a Laas ans YÚ R1 E1 Y ET EC E220904908 30

I Australian Administrative Review Sysfem sen nhe nhe 3]

A Historical Development of the Australian Legal System: British

Colonial Experience and Common Law Tradiftion - 31

B Constitutional Principles Underpinning the Australian Administrative Review SYSf€m teen renee nn TH nh nh nu 35

| RESPORSIble COVEMMITIENE: (ác iis sss nàn ng nga sagaEBTAAI707 5 6 400 36

2 Rule of LâW HH TH nà nee ene nh nh ke Hà 383+ LNG: 36PAF4HOH OF POWETS guassnbnnnindiogetotiiootriottnitinDlD kh ta 231 ¥ HƠI 40

C Development of the Australian Administrative Review System: aHistorical P€rSD€CEIV€ Q2 HH ng HH nh kh nh km nh cớ 43

1 Australian Administrative Review System before the 1970s: theNeed for RefOrm c ceneeeeeeeansneseveeeseuseees 43

2 ‘New Administrative Law’ and the Australian AdministrativeROVICW SYStOM PP 47

Il Vietnamese Administrative Review SySfem nhe 51]

A Historical Background of the Vietnamese Legal System: the History ofFOreigii LGTMGHGES TT 7 000000000000 00Ô0Ô00Ô0ÔÔÔÔÔ 5]

B Core Constitutional Principles Underpinning the VietnameseAdministrative Review System: Influences of the Socialist Political andL@p al FACOlO DY cesses «525.252 2 25 prườphgitgtogiGgi0it0SIENGNS30030GSSGG0 444358448422 BH 58

1 Leadership of the Communist Party of Vietnam 60

2 Socialist Legality and a Socialist Law-Based State 62

3, CONCENTAON OF State POW ES cereccommneesamnwses wane a1 05108 eee66

C System for Review of Administrative Action in Vietnam 70

1 Supervision of the National Assembly and the Local people’sCOUTCHS is ng" Q2 610s HE bố BE Cá 0208636014 bLN)2T/HI800/00001910050840870% 70

2 Inspection by the State Inspectorate Bodies System 72

3 Resolving Complaints and Denunciations: Internal Review ofAdministrative ACtion cccccsecesececeeeeeeesetecceecuseeeeees 73

4 Administrative Adjudication of Courts: Judicial Review ofAdministrative Action

COnGIUSION «0.6 ccc 79Chaiter Three: Models of Administrative Adjudicative Bodies in Australia andWCE «seas cascraceecacaantie ca canmmmommmmmmmenes TS 53 8 SE 5 5E § E8 58 8 8 88 8 3 8 8 ĐS02802IEG009/00000M009 80ja920109/19 2000775757 4 80

I Australian Administrative Adjudicative Bodies cc.c 8]

A Australian Courts Of Law cccee cece cece Q n ng HH nu nh ng xa 81

1 Australian Courts of Law and Administrative Law Jurisdiction

CASES cece ccc eeccecessesssececcscscesseceeuucecseeeeesceseuenscesssssuaeaaeeseeeceeets 9]

B Australian Merits Administrative Tribunals 94

1 Conception of Australian Merits Review Tribunals 94

2 Structure of the Australian Administrative Tribunal System 99III Vietnamese Administrative Adjudicative Bodies - 105

A Searching a Relevant Model of Adjudicative Bodies Exercising

Administrative Law Jurisdiction: Debates on Models of AdministrativeCourts tn ietnam ceseSiieseesseseseeeenilSiD88.8080.1688-6 6š WR 107

1 An Independent Administrative Court System 108

2 Administrative Courts under the Government 109

3 A Semi-Independent Administrative Court System 110

4 Model of Administrative Divisions of the People’s Court

B Vietnamese People’s Courts and Administrative Law Jurisdiction 113

1 Supreme People’s Court: the Removal of Original Jurisdiction

3 District People’s Courts: No Administrative Divisions 115

C Composition of Vietnamese People’s Courts Hearing AdministrativeNNÉ, 82< 10,1068187 85 BASH DEES kãk:kã LAG DORE ETI š 8 9 SIERAOEREEEISGE 117

1 Participation of People’s ASS€SSOFS 117

De M NHI RONWG dIIR|ĐiẾSesenssennsptoiorhtrtiteiSIBDNHAINESIREEEESEY N5 8 reer! 119

II Some Comparative Remarks on the Two Sysfem [22

A The Two Court Structures Compared: Several Distinctive Features ]22

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B The Existence of Australian Administrative Tribunals: Unravelling the

®.: T1 ngediab suu’dee Ua dtbva alsa ade saiaeS SERRA TART 124ConCÏUSIOT cece cece ee eee ee ceueeseeeeecsueeuceseeeeueeeetteenenager 126Ci:pter Four: Judicially Reviewable Administrative Action under the Laws ofAistralia, 2d: VIGtHA nh 00000 00/00/0000 00000 0Ô ÔÐÔÔÔÔÔÔ 130HPROIHGHDIsnuasaaninesekaSAE g5 š š cá44400880000.430031:5335538 ba 53 1 9 k KM REE 130

I Judicially Reviewable Administrative Action under the Law of Australia | 3 Ï

A Broad Scope of Judicially Reviewable Administrative Actions 131

B Ways to Limit the Scope of Judicial Review of Administrative Actions

Privative CUS€S «c1 1t ng nh Hư Hiệt 137

2 Judicial Limits: the Doctrine of Justiciability 139C¡ CANWIẰiểTHE cas nnees 03.115 LLLLenaRaRRERRRERETRRU EERIE bú £ S š § š ROS 141

Il Judicially Reviewable Administrative Action under the Law ofVASHON ca gee og 250412 1 neamennremmmmmecnssmoe 5» 001 92 ĐHAODBIBIBIGDIBDONNNHOUISDRINSHEDUSNGHEEISB)50PES 1+ Mees 142

A Adoption of an Enumerative Clause - se cà cớ 142

B The Object of Judicial Review of Administrative Action 148

1 ‘Administrative Decisions’ and ‘Administrative Acts’ as theObjects of Judicial Review of Administrative Actions of

Vietnamese COurfS cớ 149

2 Judicial Review of Administrative Decisions of a LegislativeCharacter: the Vietnamese Confext - 15]Il] Broadening the Scope of Judicial Review of Administrative Actions under theLiaw Of Vietnam on 157

Ciapter Five: Grounds for Judicial Review of Administrative Action under the LawotAustralia and Vietnam e cence eee eee ng HH nu khe 16][ntfOUCIOT eee eeeeeeececeeceesesceuuuuaneececesseceeeeeeeeueeeeneegs 161

I An Overview of Grounds for Review under the Laws of Australia and

A Commonly Accepted Principles in the Two Jurisdictions 163

B No Clear-Cut Determination of Detailed Grounds for Review under theLaws of VI€fnam cee cent eneeeeesseeeeesseteeegeneees 164

1 Lack of Legal Provisions Listing Detailed Grounds for Review

"———— ene eee ee ede ee eden eee ene sees eae en eee seseneneeeeeaeeneneeeaees 165

2 Lack of Related Judicial Interpretations 167

3 Lack of Scholarly Ïnfer€St neo 169

Il A Close Analysis of Grounds for Judicial Review of Administrative Actionsunder the Laws of Australia and Vietnam ccc cớ 170

A Australian Law and Grounds for Judicial Review of AdministrativeACEO Pi 01838 170

NN ốc 00000Ô0000/000ƠÔỨ0ỨÔỨÔỨÔÔÔ Ôn 170

2 ‘Substantive Requirements’ Grounds for Review 174

3 ‘Procedural Requirements’ Grounds for Review 182

4 ‘Catch-All’ Grounds for ReView - c««« 185

B Grounds for Judicial Review of Administrative Action in the

'Wietriainiese: Legal ‘COMER ts csccerasramarersmcernpiencemmiewieeeaesiewowesnsinys + eereeyenene 186

1 ‘Substantive Requirements’ Grounds for Review 187

2 ‘Procedural Requirements’ Grounds for Review 198

Il Improving Vietnamese Law In Relation to Grounds for Judicial Review of

Administrative ACtion cccceceeee eee e - 203

A Framework Legal Provisions for Grounds for Review 203

1 General (Ôbservấfiön zezzz0gg800.101850G0801.15 15 4u 203

2 What Grounds for Review Vietnam Should Not Adopt: the Case

of “*Unreasonablen€SS” -‹-ccccnnn esse n HS kê204

B Enhancing the Role of the People’s Supreme Court in Making Judicial0c2z2za1119 72277 206

C Call for the Adoption of a Doctrine of Precedent 207CONCIUSI Of sa si oz các 0n 065 5 14 644 5 aaau ane en eo mmenemammene yes oo š 4 EGI8G0/S1B0000300000/9938 212

Chapter Six: Powers of Australian and Vietnamese Courts in Judicial Review of

Administrative AC{ÏOP c0 cnn reece eee HH HH ng HH HT ng in ki ki kh 214

A Common Principle Underpinning Powers of Courts in Judicial Review

of Administrative ACtiONn cccceeeeccee ccc eeeeeseeeceeeeeeeseeenesenaas 215

B Powers of Australian Courts to Issue Final Orders of Review:Overlapping Classes Of REMCGIGS scsiis.cccs iiss ss eoomwemamamaneen ox ca en ens 0E 217

1 Orders Quashing or Setting aside Decisions (Certiorari) 22)

2 Orders Restraining Administrators (Prohibition and Injunction)

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3 Orders Requiring Administrators to Perform Duties (MandamusAfid Tis EqQHÌVMIGTĂBjasveeiaaden tk cone 4 > vewmmemnnnemrone on cv PK PEEEMEO 225

4 Declaratory OrderS «cà cà sen 228

Do DDHITBEBa teas tì ty nà phang phông HH0 D4005 5 6 Y PSIOEICIESEIDENOIIHSISUIER 229

C Powers of Vietnamese Courts to Issue Final Orders of Review 230

1 Some Historical Background to the Process of Drafting theOrdinance for Procedures Resolving Administrative Cases 231

2 Judicial Interpretations of the Supreme People’s Court of

3 Final Orders of Review Made by Vietnamese Courts DoD

II Interim Orders of Review under the Laws of Australia and Vietnam:Similarities between (he Two SysleiiSicnccmencnenerans sess enewsweemmmmmerces sree es 239III Exercise of Judicial Discretion to Grant Orders of Review 243

A Discretion of Australian Courts to Grant Orders of Review 243

B Vietnamese Courts and Discretionary Powers to Issue Orders ofReview: Should Vietnamese Courts Be Vested with the Discretion toGraft Firial Orders Of REVIEW 2 xx coi E165 65 15 614v 600786515550460003.EUSG88i0EG530500180338 247

Chipter Seven: Towards a Well-Functioning Administrative Review System inVienam: Proposed Reform nhe 253[FPFOMUCHION z:tisienenne «55224 ccc E0GGGHENGRRSAAR TA5ENETS ET OE 8S 4 5 8£ €8 b SIGSHDMTHIOH/0Đ207 253

I Current Channels of Resolutions for Administrative Disputes in Vietnam:Revealing the Shortcomings sc c HH HS HỲ HH He HH như xa 256

A Resolving Complaints and Denunciations: the Question of Reliability

% Ô Ô 262

2 Legal ConSfrainS ch nh nen 265

3 Enforcement of Administrative Judgments 271

4 Dependence of Local Courts on Local Governments: the

Question of Judicial Independence - cà 274

5 Administrative Judges: the Question of Expertise 277

II Enhancing the Effectiveness of Administrative Adjudication of VietnameseCotirts: Several Proposals: « i sua sang gu 2n 01g10 165 6 E5 kg 4 Si 4.8 04 844 k SDSOĐIEEUEEOODE 280

A Restructuring Vietnam’s Court System: the Model of Regional Courts

¬ cee eencecnceeeeeeeenncceeeeeeeeeeeneeeeeeeeeseeeee senses seeeeeees yeas eeetsneeaeees 280

1 Initial Ideas of the Model - - - 280s8 0c 1777 = 282

B Expanding the Scope of Judicially Reviewable AdministrativeDecisions: Choosing an Appropriate Way for the Current Vietnamese

C Amendment of Some Procedural Legal Provisions: a CarefulI® 9)11-1141-)y:1519) gtaaaááảá4đ4ẢắẮ.i 289

Vil

Ill A Model of Administrative Tribunals in Vietnam: Some Australian Ideas 291

A Vietnamese Administrative Tribunals: Some Initial Ideas 292

B Vietnamese Administrative Tribunals: a Justification for the Proposal

Model of Land Tribunals (co quan tai phan ve dat dai) 298

1 A Promising Proposal Ăn nen 298

2 Potential Challenges ccccecceee eee e ents eee enee en se 302CORE] W810 iccnasawsnasmmanunsnans 64 << gã0tIgi00ã0SiNHERIGIMM1S8I3I8'25BiS06 5 5 § S 1 § § š X een EGEUSESDTĐER 305

€ẽfipral C on£ÏuSÏöiri 242 — 2 E5 E5 855154 644615.66001000i0800100061680861.30033 3 k§ HIẾN 307

I Understanding the Context: Reforming the Vietnamese Administrative ReviewSystem in the Vietnamese Conditions «cà Sàn se.307

II Proposed Reforms of the Vietnamese Administrative Review System:Adopting Australian Ideas Given the Vietnamese Conditions 309

1 Model of Vietnamese Administrative Adjudicative Bodies: Courts andMerits Review TribunalS cv va 310

2 Gradually Extending the Scope of Judicially ReviewableAdministrative Action: an Appropriate Solution for Vietnam 310

3 Adopting Detailed Rules Relating to the Judicial Review ofAdministrative Action: What Could Australian Experience Suggest toVietnamese Law-ÌMak€rFS7 - co co HH HH 9613.5808 050 311III Constructing a Well-Functioning Administrative Review System in Vietnam:Challenges Ghd PrOsPetts.ccccricsscsanssaessos eevee 10081011 G98031EESESETIESEEXSWSEY 311Bibliœraphy ch HH Kế nà Kế nà nà te nà RA 315

] owe a particular debt of gratitude to my supervisors, Associate Professor, Dr.Spencer Zifcak and Associate Professor, Dr Roger Neil Douglas who spent a great deal

of tine, energy and patience in helping me to clarify issues and shape ideas, readingVatious earlier drafts of my thesis, and giving me insightful comments This thesis wouldReve’ have been completed without their valuable support

My deep gratitude goes to my family: my parents in Vietnam who always look

forwird to hearing from me during the last four years; my wife Hoang Ly Anh and my

litde girl Bong who had two lonely years in Vietnam while I was in Australia for the first

two vears of PhD candidature and lost many weekends and holidays in Australia due to

my ‘inal busy academic years; and my bothers and sisters in Vietnam who have

Co1santly encouraged me with their interest in my study progress

Deep thanks also go to Robyn Thomas and Gabi Duigu, who have helped me improve

my English expression in the course of writing this thesis

lam grateful to my friends, colleagues and many other people in Australia and

Vietiam who in various ways help me complete this thesis

This thesis is a critical comparative study of the systems of review of administrativeation by courts and tribunals in the Australian and Vietnamese jurisdictiens Its purpose

i to determine the feasibility and desirability of applying Australian legal experience in

\ietnamese conditions It examines the law and legal institutions of both countries withrgard to the subject matter of administrative law in order to make comparisons and,nore importantly, to draw on Australian experiences which may be relevant to Vietnam’stgal reform It focuses on four related themes, namely, the models of adjudicativetodies, the scope of judicially reviewable administrative actions, the grounds for review

ad the powers of courts in the Australian and Vietnamese jurisdictions Thisomparative analysis establishes the basis for a number of proposals for improvements intie judicial review mechanism and for the adoption of a model of administrative tribunals

ii Vietnam The thesis argues that the key to a sensitive and accurate comparative lawsudy is the ‘law in context’ approach, based on which proposals can be made that arebasible and desirable in the Vietnamese conditions It then concludes that whileaustralian experience may offer Vietnam some ideas about how to reform itsadministrative law system, if the reform is to be effective it needs to be carried out

gradually, consistent with the Vietnamese context.

TABBLE OF ABBREVIATIONS

The following abbreviations appear in the main text and/or footnotes of this thesis Mostare :pelled out in full or otherwise explained when they are first mentioned

Staes and Organisations

AAS: Administrative Appeals Tribunal

ACT: Australian Capital Territory

AD3: Asian Development Bank

ADT: Administrative Decisions Tribunal

ARC: Administrative Review Council

ART: Administrative Review Tribunal

AusA{D: Australian Government’s Overseas Aid Program

CPY:Communist Party of Vietnam

CSLJ Council for Selecting Local Judges (Vietnam)

DRV Democratic Republic of Vietnam

FC: Fzderal Court of Australia

FMC Federal Magistrates Court

GATTM: General Agreement on Tariffs and Trade

HC: ligh Court of Australia

IMF: International Monetary Fund

MNRE: Ministry of Natural Resources and Environment (Bo Tai nguyen va Moi truong,Vietram)

MRT Migration Review Tribunal

NSW New South Wales

NSWGT: New South Wales Guardianship Tribunal

NT: Worthern Territory

PAR Public Administration Reform

PRC People’s Republic of China

Qld: Jueensland

RRT Refugee Review Tribunal

SA: ‘outh Australia

SRV Socialist Republic of Vietnam

SSA*: Social Security Appeals Tribunal

UNIP: United Nations Development Programme

USS: The Union of Soviet Socialist Republics

xi

VCAT: Victorian Civil and Administrative Tribunal

VFF: Vietnam Fatherland Front

Vic: Victoria

VRB: Veterans Review Board

WA: Western Australia

WTO: World Trade Organisation

UK: United Kingdom

US: United States of America

Laws

AAT Act: Administrative Appeals Tribunal Act 1975 (Cth)

ADIR Act: Administrative Decisions (Judicial Review) Act 1975 (Cth)

BTA: 3ilateral Trade Agreement

FOI A:t: Freedom of Information Act 1982 (Cth)

JR Aci: Judicial Review Act

STATEMENT OF AUTHORSHIP

Excejt where reference is made in the text of the thesis, this thesis contains no material

publi:hed elsewhere or extracted in whole or in part from a thesis by which | have

qualiied for or been awarded another degree or diploma

No oher person’s work has been used without due acknowledgement in the main text ofthe tlesis

This thesis has not been submitted for award of any degree or diploma in otherinstitition

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xii

Sone initial ideas in relation to this thesis were published In:

| Quang, Nguyen Van (2006) A Model of Administrative Tribunals for Vietnam?

In The Development of Law in Asia: Convergence versus Divergence, 2, pp

526-544 Shanghai: East China University of Politics and Law

Symposium: ASLI Conference

2 Nguyen, Quang 2004 'The Organisation and Operation of Administrative Courts

in Vietnam.' In: Cribb, Robert (ed) 2004 Asia Examined: Proceedings of the15th Biennial Conference of the ASAA, 2004, Canberra, Australia Canberra:Asian Studies Association of Australia (ASAA) & Research School of Pacific andAsian Studies (RSPAS), The Australian National University ISBN 0-9580837-1-

1 coombs.anu.edu.au/SpecialProJ/A SA conference/2004/proceedings.html

A/biennial-3 Nguyen Van Quang, ‘On Grounds for Judicial review of Administrative Action’(2004) 4 Tap chi Luat Hoc (Jurisprudence Review), Hanoi, Vietnam [inVietnamese language]

4 Nguyen Van Quang, Administrative Pre-trial Period and the Issue of EnsuringIndividuals and Organisations to Initiate Actions (2002) 5 Tap chi Luat Hoc(Jurisprudence Review), Hanoi, Vietnam [in Vietnamese language]

5 Nguyen Van Quang, Some Main Points about Solving Administrative Disputes inAustralia [in Vietnamese language] (2001) 3 Tap chi Luat Hoc (JurisprudenceReview), Hanoi, Vietnam [in Vietnamese language]

€ Nguyen Van Quang, ‘Powers of the People’s Courts in Solving AdministrativeCases through First-instance Procedure’ (2001) 6 Tap chi Luat Hoc(Jurisprudence Review), Hanoi, Vietnam [in Vietnamese language]

Scrre initial ideas in relation to this thesis also were presented at:

Vietnam Studies Summer School, Research School of Asia&Pacific Studies, theAustralian National University, January 31 - February 4, 2005

», ALC Brown Bag Seminar, Asian Law Centre, The University of Melbourne, 18May 2005

On the same day the Ordinance on Procedures for Resolving Administrative Cases (Phaplenh ‘hu tuc giai quyet cac vu an hanh chỉnh) officially came into force to facilitateproceedings against government actions in court The granting of administrative lawjurisciction to the people’s courts marked the establishment of a channel for judicialreview of administrative action in Vietnam where, previously, complaints aboutadministrative actions could usually be resolved only via the internal review systemwhich »perated within each government department Thus, the introduction of judicialreview of administrative action in Vietnam must be regarded as a major effort by theVietnamese government to create a set of tools for protecting the legitimate rights andinteresis of individuals and organizations, ensuring the accountability of administrators,

Promoting the process of democratizing all aspects of social life, and above all

constricting a rule of law state This also indicates that the doi moi (renovation) policy

which was initiated by the Communist Party of Vietnam (CPV) in 1986 has brought to

this ccuntry not only impressive achievements in economic development, but alsoimportint reforms of political and legal institutions

Deipite Vietnam’s efforts to formally introduce laws and legal institutions relating to

judicid review of administrative action into its legal system in order to exemplify the goals <f the rule of law, fairness and justice, this review channel is currently hampered by

the indequacies of related legal and institutional frameworks This manifests itself in limitatons of the court structure and in the legal constraints which negatively affect the resoluion of administrative law cases Typical examples are the lack of judicial

indepadence of courts, especially of local courts, the limited scope of judiciallyrevievable administrative actions, and the lack of detailed legal rules facilitating theproces of judicial review of administrative action

' See d Smith, Harry Woolf and Jeffrey Jowell, Judicial Review of Administrative Action (5" ed,1995),

5-6.

If Vetnam is to become a rule of law state, much work will be required to deal withoverconing those inadequacies This task has become urgent in the context of integrationand glcbalisation, especially since Vietnam’s WTO accession, which was officiallyrecognized on II January 2007 Within the WTO framework Vietnam has committeditself tc improving its legal system so to be consistent with the WTO requirements, one

of whic) is to raise the effectiveness of the administrative review system Indeed, for thelast fev years Vietnamese law reformers have made attempts to improve their legalenvironment to respond to the requirements of international integration This has beenevidenced in some recent developments of the laws and legal institutions relating to thechannes cf reviewing administrative actions Such developments, notably, are theenactment of a new version of the Law on Complaints and Denunciations (Luat Khieunai, To cao) for raising the effectiveness of the internal review mechanism, the gradualextension of judicially reviewable administrative actions and several proposals forrestrucurirg the court system and adopting a model of administrative tribunals

There is a political and socio-economic impetus for these recent dynamic reforms ofthe Vietnanese administrative review system The reform process has been stronglysuppored by the Communist Party of Vietnam as ‘the force leading the State andsociety’.” At the same time, the socio-economic development of Vietnam in recent years”has also led to changing attitudes to non-material values such as ‘legality of treatment’

and ‘fairness or correctness of treatment’, and to a growing willingness to pay the cost of

institution: However, while the issue of whether these recent developments have been

proven to be appropriate for adopting a well-functioning administrative review system needs to ke examined, it remains clear that further significant steps need to be taken to

2 The Constitution 1992 of Vietnam, article 4 The political support for reform of the Vietnamese review

admimistrati‘e system is reflected in Nghỉ quyet so 08-NQ/TW cua Bo Chỉnh tri ve mot so nhiem vu trongtam cuca core tac tu phap trong thoi gian toi (Trans: Resolution of the Political Bureau No 08-NQ/TW onSome Judical Principal Tasks for the Forthcoming Period}, and Nghi quyet so 49-NQ/TW ngay 02-6-2005cua Bo Chih tri ve ''Chien luoc cai cach tu pháp den nam 2020’' [Trans: Resolution of the PoliticalBureau No 9-NQ/TW on ““Strategy for Judicial Reform by the Year 2020 ''].

? In recent y:ars Vietnam has demonstrated impressive achievements in economic development According

to statisticsfrom the International Monetary Fund (IMF), annual percentage growth in real GDP inVietnam in2001, 2002, 2003, 2004 and 2005 respectively was 6.9, 7.1, 7.3, 7.8, and 8.4 (see IMF, Vietnam: Sttical Appendix, Country Report No.06/423

<httm://wwv.imf.org/external/pubs/ft/scr/2006/cr06423.pdf > at 15 January 2007).

* See: Asia Development Bank (ADB), Vie: Governance Assessment with Focus on PAR and

Anti-Corruption (2005), 15-28 <http://www.adb.org/Documents/Reports/CGA/CGA-VIE-2005.pdf> at 30January 200

improve the legal and institutional frameworks for reviewing administrative actions in

Vitram

Cbviously it is unrealistic to expect the immediate adoption in Vietnam of a judicialreiew system like that of Western countries, where fundamental values like ‘rule oflav’ ‘separation of powers’, ‘civil society’, ‘good governance’ and ‘accountability’ havebe:n developed over a long period of time It has to be recognized that in comparisonwih developed countries like Australia, or with a transitional country like China,adn nistrative adjudication is new to Vietnam's court system Thus it is quiteurderstandable that the Vietnamese legal and institutional frameworks relating to judicialreview of administrative action still need to be improved Moreover, one can understandwiy the inadequacies of Vietnam’s administrative review system still exist, in the context

of < legal system in transition, shaped by a range of distinctive ideological, pcliical, economic and cultural features

socio-J Reforming the Current System of Review of Administrative Actions inVienam: ‘Comparative Law’ as a Tool of Legal Reform

teforming Vietnam’s legal system in general and its administrative review system inPartcular is, as in most transitional countries, a long process which requires muchend:avour in seeking ways that are appropriate for the local conditions This is a very

diffcult task for Vietnamese law reformers To fulfill this task, it is suggested that

‘conparative law’ may serve as a tool that could help Jaw reformers to find solutions to ther problems through learning from foreign legal experience Although there are still oppsing viewpoints on the viability of legal borrowing, and debates about how to sucessfully transplant law remain inconclusive, it is undeniable that borrowing foreign leg:l experience has become a practical method that is commonly used by law reformers,

especially by those of developing countries, for reforming their legal system.” This

apyroach is particularly emphasised in the context of integration and globlisation, asNeken has put it:

Borrowing other people’s law is seen as just a method of the speeding up the process of finding legalsolutions to similar problems - a process being encouraged all the more by pressures towardsconvergence brought about by globalisation.°

” Se Andrew Harding and Esin Orticii, 'Preface' in Andrew Harding and Esin Öricù (eds), Comparative

La in the 21st Century (2002) vii, ix.

° Lavid Nelken, ‘Legal Transplants and beyond: of Disciplines and Metaphors’ in Andrew Harding and

Es) Orici (eds), Comparative Law in the 21st Century (2002) 19, 26-7

n fact, during the course of preparation for the establishment of administrative lawjuridiction of the people’s courts, Vietnamese law-makers have inquired into howfordgn models could benefit them by suggesting relevant solutions to Vietnamese

prolems To improve the laws and legal institutions relating to the system of reviewing

adninistrative actions, studying foreign legal experience remains a promising tool, since

it Ould point to the way in which Vietnamese law reformers should deal with theinalequacies of the system, consistent with Vietnamese conditions This is the reasonwhy this thesis seeks to draw on those Australian legal experiences which are meaningful

to he process of reforming the Vietnamese administrative review system This objective

wil be pursued by conducting a critical comparative study of the laws and legal

ingitutions of Australia and Vietnam relating to the review of administrative actions bycourts and tribunals The main themes of comparison will be the models ofadninistrative adjudicative bodies, the scope of judicially reviewable administrativeacions, the grounds for review, and the powers of courts in judicial review ofadministrative action These topics are relevant to this comparative study not onlybecause they are amongst the main elements of an institutional and legal framework forreview of administrative action by courts and tribunals, but also because they point toinacequacies in the system of reviewing administrative actions which Vietnamese lawreformers need to overcome

(11 Why the Australian Model?

While it is assumed that ‘comparative law’ can serve as a tool for legal reform, the question that needs to be raised for Vietnamese administrative law reformers is why the

Australian model is worthwhile consulting

There are grounds for acknowledging that the introduction of ‘New Administrative

Lav’ in the 1970s (based largely on the recommendations of the Kerr Committee Report)

ha: brought about impressive changes to the Australian administrative law system in

gereral, and that of the Australian administrative review system in particular Thereorms of the 1970s have made Australian administrative law distinct from the

oe * 7

adninistrative law of other common law countries, including England.’ It has been

"See Justice Garry Downes AM, ‘The Implementation of the Administrative Courts' Decisions’ (Speech

deivered to the International Association of Supreme Administrative Jurisdictions VIIIlth Madrid Spain

228 April 2004)

<Ittp://www.aat.gov.au/SpeechesPapersAndResearch/speeches/downes/implementation.htm> at 30 July206

clained that Australian administrative law, which is now mainly shaped by statutes, is

‘onc of the most comprehensive systems of administrative law in the world’.® This ismarifested by the presence of a cohesive and integrated system for reviewingadninistrative action, in which the development of the system of administrative meritsrevew tribunals has been a significant achievement The Australian administrativerevew system, as Justice Deidre O’ Connor has claimed, is ‘in many ways, an example

of world’s best practice’.’

Moreover, changes to the Australian administrative law system might also serve as agood example of reforming laws and legal institutions with the assistance of studyingforeign models This is because the recommendations of the Kerr Committee Report onhow to reform the Australian administrative law system were also made by takingaccount of the experience of the administrative law systems of the UK, the US, New

Ze¿land and France.'? Subsequent reforms of the Australian administrative law system

have also reflected the effectiveness of borrowing from such overseas experience

As a result, in recent years, the developments of the Australian administrative lawsystem ‘have attracted international attention and emulation’ from both developed and

develoaing countries.'' For example, in November 2005 the Department for

Constiutional Affairs of the UK released a research report by Trevor Buck showing theUK’s interest in the distinctive reforms of the Australian administrative justice system '7 Several countries in Southeast Asia, such as Thailand and Indonesia, have also been keen

to study the Australian administrative law system, especially the Australian

® Robin Creyke and John McMillan, 'The Operation of Judicial Review in Australia’ in Marc Hertogh andSimon Halliday (eds), Judicial Review and Bureaucratic Impact: International and InterdisciplinaryPerspectives (2004) 161, 162

See Justice Deidre O’ Connor, Administrative Decision-Maker in Australia: the Search for Best Practice,

Paper lelivered to 2" International Conference on Administrative Justice, Quebec, 17-20 June 2001

<hữp:/www.aat.gov.au/SpeechesPapersAndResearch/speeches/oconnor/administrative.htm> at 30 July2006.

'© See Commonwealth Administrative Review Committee, Report (1971) (the Kerr Committee Report),Chaptes 6, 7, 8 and 9.

!! Robn (Creyke and John McMillan, above n 5, 162

'2 SeeTrevor Buck, Administrative Justice and Alternative Dispute Resolution: the Australian Experience(2005)< http://www.dca.gov.uk/research/2005/8 2005 _full.pdf> at 31 July 2006.

adrnistrative review model, in order to consider relevant experiences that may be usefulfor 1e reform of their systems.”

he above practice has suggested that studying the Australian administrative reviewmigit well provide Vietnamese law reformers with useful lessons to help them to deal

wit] the inadequacies of the Vietnamese administrative review system This propositionhasbeen recently encouraged by the proposal from the Ministry for Environment andNatiral Resources of Vietnam to establish land tribunals, which functionally resembleAutralian specialist merits tribunals

t is, however, noted that it has not been an easy task for law reformers to successfullyborow from foreign legal experience, even if the borrowing process is entirelyvolintary This thesis will examine whether and how far this would be the case if it isproosed that Australian legal experience is adopted in Vietnam Notably, while theAutralian model might work quite well under Australian political, legal, social,

€cœomic and cultural conditions, this does not guarantee that it would work effectively

in te Vietnamese conditions Moreover, even if it is assumed that the Australian system

is an example of world’s best practice’, this system also has its own problems andreqiires Australian reformers to continue to put efforts into reforming their system Thus,thi: thesis will argue that appropriate proposals suggested by the Australian experience to

Vittramese reformers can only be drawn from a critical comparative study and that the

‘lav in context’ approach is the key to the making of such a study

It should be noted that the comparative study in this thesis mainly focuses on the

Australian and Vietnamese jurisdictions However, at times, the related laws and

prctices of China are also referred to as an example of the legal development of acoimry in transition which has socio-political, legal and cultural conditions similar tothese of Vietnam Since China has taken up reform of its legal system somewhat earlierthen Vietnam has, Chinese experience in relation to the adoption of Western legal ideas

mzy also suggest steps which Vietnamese law reformers should follow for a successful

reform process

"3 Ser Justice Garry Downes AM, ‘Australian and Thailand Comparative Administrative Law’, Thailand

-Autalia Mature Administrative Law Program Visit to Australia by Professor Dr Ackaratorn ChularatPresilent of the Supreme Administrative Court and Other Judges and Court Officials, Sydney 5 February 20)7

<htr//www.aat.gov.au/SpeechesPapersAndResearch/speeches/downes/pdfComparativeA dministrativeLawFelruav2007.pdf > at 28 February 2007; Chief Justice HR Soerjono, ‘Opening Address at Seminar’ inRebin Creyke, Julian Disney and John MacMillan (eds), Aspects of Administrative Review in Australia andIndoresia, Australia-Indonesia Legal Seminar Series (1996) 3, 3-5

I’ Thesis Structure

Nis thesis is a critical comparative analysis in which the main problems that Vietnam

is ccifronting in establishing its institutional and legal! schemes for an effective channel

of judicial review of administrative action will be identified, and Australian experiencesthat :hould (or should not) be adopted given Vietnamese conditions will be examined Italsowill consider potential challenges that Vietnam would face in the course of adoptingthe oposed reforms In pursuing these research tasks the following issues will bediscissed in this thesis:

(hapter One provides a discussion of the theoretical framework of ‘comparative law’and ts utility in practice, in order to justify the assumption that the ‘comparative law’apppach can assist law reformers to draw experiences from foreign legal systems thatmaybe meaningful to reforming their own legal system

(hapter Two offers an analysis of the historical and constitutional backgrounds of theadmnistrative review systems of Australia and Vietnam, thus establishing the basis forlate: comparative discussions in the following chapters It focuses mainly on historical,ideoogical, political and legal factors affecting the development and operation of theadmnistrative review systems in both jurisdictions

“he following four chapters undertake four comparative analyses of particular themes

ii geater detail in relation to the institutional and legal frameworks for the review ofadministrative action by courts and tribunals in the Australian and Vietnamese

Thapters Five and Six offer an extensive comparative analysis of the laws ofAufralia and Vietnam regarding grounds for review and the powers of courts in thejudcial review of administrative action, in which problems associated with the law ofVienam in these aspects are identified

Chapter Five argues that while the lack of Vietnamese legal rules detailing groundsfor re‘iew can be simply dealt with by technically borrowing Australian rules, seriousconsiceration should also be given to examining whether there are Australian legal rules

in ths regard which should not be adopted, given Vietnamese conditions The

‘unreisonableness’ rule is discussed in greater detail in this Chapter to support this

argunent.

Jt is argued in Chapter Six that although several commonly accepted principlesunderying judicial review of administrative action have been adopted in the law ofVietmm, the Vietnamese legal framework for judicial review of administrative action isstill teing developed The comparative analysis in Chapter Six illustrates this argumentand exemines how far the Australian experience may suggest ideas for improving itslegal framework in this regard to Vietnam’s lawmakers In particular, it contends that inthe current Vietnamese legal context it would not be practical to introduce to Vietnamesecourt; the discretion which exists in Australia, to decline to make orders of review evenwhen ilegality has been established

Chapter Seven is concerned with some proposed reforms for the Vietnamese

administrative review system which are mainly drawn from this critical comparativestudy 4 coherent picture of the current system of resolution for administrative disputes

in Vienam is first provided in this Chapter This is followed by an analysis of several

proposd reforms and the potential challenges, both theoretical and practical, that Vietnan would face in the course of such reform This analysis illustrates the argument that wiile the Australian experience may offer Vietnam some ideas about how to reform its adninistrative law system, if the reform is to be effective it needs to be carried out gradudly, consistent with Vietnamese conditions.

Compaative Law was held in Paris.' As a methodology, comparative law has been

regarded as one which is ‘still at the experimental stage’.? However, comparative lawyers have ytt to agree on what comparative law entails, on the methods to be used in themakiag of comparisons, and on the insights which can be drawn from the making ofcompaiisons In relation to the utility of comparative law as a tool of Jaw reform, there iscontimed debate about the practicability of legal transplants.? While supporters of legal

transolints assume that foreign laws and legal institutions can be transplanted, this, as we shall se, is a proposition with which some still disagrees Consequently, it is necessary

' See Peer De Cruz, Comparative Law in a Changing World (1995), 14 For a discussion about the history

of comparative law, see Konrad Zweigert and Hein Kotz, An Introduction to Comparative Law (3" rev.ed,

1998, 9- 62.

? Korrai Zweigert and Hein Kotz, above n 1, 33

? The dbates about the role of comparative law as a tool of law reform are concerned with the issue of

legal trnsplants The possibility of the transplanting of legal rules is discussed by several comparativelawyers See, for example, Otto Kahn-Freund, 'On Uses and Misuses of Comparative Law' (1974) 37Meder: Law Review 1; Alan Watson, ‘Legal Transplants and Legal Reform’ (1976) 92 Law QuarterlyReview79; Eric Stein, 'Uses, Misuses - and Nonuses of Comparative Law' (1977-1978) 72 North WesternLaw Rview 198; and Pierre Legrand, 'The Impossibility of 'Legal Transplants" (1997) 4 MaastrichtJourna of European and Comparative Law 111 Watson is one of the major advocates for legal transplantswhile L:grand is one of the comparative lawyers who argue that legal transplants are impossible

to disciss in this study the theoretical framework of comparative law and its utility in

practice in order to justify the assumption that the comparative law approach can assistthe reseircher to achieve the research objectives as mentioned earlier

Ths Chapter is divided into three Parts Part | examines the definition ofcomparitive law offered by Zweigert and Kotz, which, from the author’s point of view,coincid:s with the purposes of this study Part II is concerned with the utility of thecompantive law method, and argues that any comparative law study should not besimplya study of laws per se (meaning statutes and judicial decisions) but also of the law

in its cial context Part HII begins with a debate about comparative law and legalreform and then argues that it is possible for law-makers to borrow from foreign legalexperiaces so long as those experiences are studied and examined in relation to whetherthey ar arpropriate for application in their own legal system By referring to the case ofVietnan with regard to the course of constructing and improving its review mechanismsfor Coitroling public power, Part III ends by generally discussing the possibility ofapplying the Australian experience for improving the law and legal institutions ofVietnan

I, COMPARATIVE LAW: A METHOD FOR THE STUDY OF LAW

It seens that, as Schitzer has argued, it is difficult to provide a clear unambiguous

definition of comparative law.’ There has been a long debate about what comparative law actualy is, which essentially revolves around whether comparative law is a method for the sudy of law, or a science, or an educational discipline.” While some have

conclydec that ‘comparative law will remain a stumbling block for legal scholarship for

generetiors to come’,° it seems to be reasonable to regard ‘comparative law’ as a general

term composing ‘both theories and methods that can be further classified into various

sub-grouys’.’ Clearly, therefore, there is no self-evidently correct definition of what

* Schiter, Vergleichende Rechtslehre, Vol.1, 106-18 cited in M Bogdan, Comparative Law (1994), 18

claiming thịt there are various ideas about the meaning of the concept of comparative law

* The debae about what comparative law is has been mentioned in many comparative law works See, for

example, Aan Watson, Legal Transplants: an Approach to Comparative Law (2 ed, 1993), 1-9; Peter De

Cruz, zbov: n 1, 1-6; Bogdan, above n 4, 18-26; Djalil 1 Kiekbaev, ‘Comparative Law: Method, Science orEducation Discipline?’ (2003) 7.3 Electronic Journal of Comparative Law <http://www.eicl.org/73/art73-2.html> aö0 July 2006.

® Kiekbaev above n 5

7 Per Berging, Legal Reform and Private Enterprise: the Vietnamese Experience (1999), 28

‘ccmparative law’ involves Nonetheless, several non-controversial observations can bemede about the term.

At the outset, it is commonly accepted that although the term ‘comparative law’ issomewhat misleading,® it must first of all not be understood as a branch of law or a body

of rules Stressing this point, Watson claims that ‘[t]here is, it is freely conceded, no

‘Conparative’ branch of law in the sense in which lawyers call one branch of law,

‘Family Law’ or another ‘Mercantile Law’’.” The term ‘comparative law’ itself also meais that comparative law must have comparison as its element.'° Zweigert and Kotztherefore hold that the term ‘comparative law’ implies ‘an intellectual activity with law

as its object and comparison as its process" '

While a comparison can normally be conducted between different rules in a singlelegal system, comparative law, as Zweigert and Kotz argue, must be differentiated fromwha lawyers usually do within their own legal system That is to say, it involves thestudy of foreign legal systems However, since comparative law must have comparison

as iS core, a mere study of foreign law is not a comparative study unless it explicitlyconains specific comparative reflections When arguing for the significance of compared

elenents in comparative law, Reitz, for example, claims that ‘[i]f one wishes to claim the

ben:fits of the comparative method, one cannot leave the act of comparison to the

reacers’.'* Regarding this matter, Zweigert and Kotz also state that a comparative law

stucy would be best if:

he author first lays out the essentials of the relevant foreign law, country by country, and then uses this naterial as a basis for critical comparison, ending up with conclusions about the proper policy for the

u k Zweigert and H Kotz, above n 1, 2

'2 phn C Reitz, 'How to Do Comparative Law' (1998) 46 American Journal of Comparative Law 617,

61+

'®1Zweigert and H Kotz, above n I, 6

Cn he basis of the above analysis, Zweigert and Kotz define comparative law as “thecomaison of the different legal systems of the world’.'* This definition indicates that it

is a nehod for the study of law that embodies two main features: (a) involving a process

of camarison; and (b) dealing with the law of different countries

‘Th comparative law method, as Zweigert and Kotz assert, has several aims andfunciœs, one of which is to serve as ‘an aid to the legislator’.'° The role of comparativelaw asa tool for legal reform is especially emphasised in the sense that ‘good lawscanmtbe produced without the assistance of comparative law, whether in the form ofgenea studies or of reports specially prepared on the topic in question’.'® This isconfrned by Koopmans belief that ‘by learning from others, you can improve thequalty of your own legal system’.'’ This approach has commended itself to many comaative lawyers '° In a recent article, John C Reitz has claimed that ‘I believe thatthere 5 a “comparative method” and that it continues to offer strong benefits for thestudy ›f law’.!? Discussing comparative law in this thesis, the researcher will use theterm il sense used by Zweigert and Kotz

In Vietnam, comparative law has become a common interest of many legal scholars,especilly in the climate of the ‘open door’ policy, international integration andglotalsation The interest of Vietnamese scholars in comparative law has been

evideiced by the publication of a number of Vietnamese language analyses of compzative law issues.”” In recent years, the need to study foreign legal experience in

"Ibid.

'S Ipd,16 Generally, as K Zweigert and H Kotz have pointed out, comparative law can serve as: (1) anacademe discipline; (2) an aid to legislation and legal reform; (3) a tool of construction; (4) a means ofunderstnding legal rules; and (4) a contribution to systematic unification and harmonisation of law

'5 Ibid 16

'7 Tim <oopmans, Courts and Political Institutions: a Comparative View (2003), 4

'8 SeeKiekbaev, above n 5 This author lists various leading comparatists such as Pollock, David,

Gutterige, Patterson, Grossfeld, Kahn-Freund, De Cruz, and Szabo who advocate the approach tocompaative law as a method of study of law.

'? See ohn C Reitz, above n 12, 617

? Seefor example, Vo Khanh Vinh, 'Tim hieu ve luat so sanh [Trans: To Learn about Comparative Law]'

(19921ssue No 2 Nha nuoc va Phap luat (State and Law) 41; Nguyen Ngoc Thach, ' “Luat so sanh”: mot

so vane ve khai niem [Trans: “Comparative Law”: Some Conceptual Issues]' (1992) Issue No 3 Nha nuoc

the 2rcess of drafting laws has been ever more emphasised, and the utility of thecompative law approach is becoming increasingly apparent in research by Vietnameselegal scholars.7! Comparative law has also become a subject currently offered by some of Vietnm’s law schools.”* However, it should be noted that since ‘comparative law’appeas to be relatively new to many Vietnamese legal scholars, it is unsurprising thatmost comparative law works by Vietnamese scholars so far have been written at arelatively general level There is still a lack of studies which systematically examine theimplications of comparative law for legal development in Vietnamese practice.”Nevertheless, signifying the importance of comparative law, it is generally recognisedthat es a method to study laws of different countries, it can help Vietnamese lawmakers

to study foreign legal experience for the purposes of building and improving their ownlegal system

I HOW TO COMPARE LAW: A ‘LAW IN CONTEXT’ APPROACH

The question of how to compare law has produced many epistemological andmethodological debates among comparative law scholars since this issue is essential toamy Comparative law research Offering ‘nine basic principles of the comparative law

va Pháp luat (State and Law) 51, Nguyen Nhu Phat, 'Ve khai niem, doi tuong va phuong phap luan nghienGlity lát so sanh [Trans: On Concept, Subject and Methodology of Comparative Law]' (1992) Issue No 2Nha nuo: va Phap luat (State and Law) 37; Vien Nha nuoc va Phap luat (Institute for State and Law) Timhieu luai so sanh [Trans: Studying Comparative Law] (1993); and Ngo Ba Thanh, 'Influence of Buddhism

om Ancitnt Vietnamese Law and Role of Comparative Law in Contemporary Juridical Science’ (1996)2( 17) Vietnam Law & Legal Forum 24.

21 See Nguyen Nhu Phat, 'He thong phap luat Viet Nam tu goc nhin luat so sanh: May van de ve phuongphnap lun [Trans: The Vietnamese Legal System Approached from the Comparative Law Perspective:Some M:thodological Issues}' (2000) Issue No 2 Nha nuoc va Phap luat (State and Law) 52, 56

22 In Haioi Law University, the second year students are currently offered comparative law as core subject

C@mpartive law is also taught in some other law schools in Vietnam such as Ho Chi Minh City LawUmiversty and the Faculty of Law of the Hanoi National University

3 Untilnow the main work done by Vietnamese legal scholars regarding comparative law has been to

translate related foreign language materials into Vietnamese in order to introduce the subject ofcompartive law to Vietnamese jurist circle The recent article entitled ‘Tiep nhan phap luat nuoc ngoai -Tlhoi cova thach thuc moi cho nghien cuu lap phap’ [Trans: Receiving Foreign Law - New Chances and Clhallerses for Legislative Studies} by Pham Duy Nghia is one amongst very few articles discussing theretceptic of foreign laws in law making activities in general, and in the areas of Vietnamese enterprise law

im partialar See for more details Pham Duy Nghia, 'Tiep nhan phap luat nuoc ngoai-thoi co va thach thuc moi Chcnghien cuu lap phap [Trans: Receiving Foreign Law -New Chances and Challenges for LegislativeSttudies (2002) Issue No 5 Tap chi Nghien cuu Lap phap (Legislative Studies) 50, 50- 7

method’which might enable the researcher to achieve good comparative law scholarship,Reitz :cicludes that, for comparative lawyers, the comparative law method appears to besimple 2 describe but difficulty to apply." This is because, as he explains, to besuccessl comparative law requires the comparatist to have a ‘command of a largeamountof information about the legal systems under the comparison, as well as thebroadersocizties in which the legal systems exist'.””

Reit’s conclusion strongly supports the idea which has been long advocated by manyscholar; tha: comparative lawyers ought to have a broad approach to comparative law by

6 although comparison of rules is sometimesgoing leyoid comparing rules per se,

valuadl:.”’ [t is obvious that law, as Mark Van Hoecke and Mark Warrington claim,

‘cannot be understood unless it is placed in a broad historical, socio-economic,psychoogical and ideological context’.”* As a result, to obtain satisfactory comparative outcom:s, comparatists cannot limit themselves to simply comparing rules’;”’ in other words, the: ought to compare laws in both legal and non-legal contexts.*° Again, inpractic, itseems to be easier to make this general statement than to locate comparative

4 See Jdn C Reitz, 'How to Do Comparative Law' (1998) 46 American Journal of Comparative Law 617,

635.

5 Ibid.

% For eamre, Watson claims that comparatists are required to study not only law (meaning legal rules)

but also‘hisorical relationships’ and influences of systems or the rules For him, mere comparison of legalrules dœs nc constitute comparative law (see Alan Watson, above 5, 1-10) There has long been a call forcompantive awyers to go beyond the ‘law as rules’ approach to study law in its political, economic andsocial cnter rather than law per se See, for example, Lawrence M Friedman, 'Legal Culture and SocialDeveloymer' (1969) 4 Law and Society Review 29, 33-8, Roger Cotterrell, "The Concept of Legal Cultures’

in Davil Nexen (ed), Comparing Legal Cultures (1997) 13, 13-4

27 Whib emhasising the ‘law in context’ approach in conducting comparative law studies, it should beacknowedgd that comparing rules per se sometimes can point to differences which in turn suggest fruitfulhypothsise about context

28 Mark VaiHoecke and Mark Warrington, ‘Legal Cultures, Legal Paradigms and Legal Doctrine: Towards

a New Modl for Comparative Law' (1998) 47 International and Comparative Law Quarterly 495, 496

29 Ibid,495

30 Mak Vì Hoecke, 'Deep Level Comparative Law' in Mark Van Hoecke (ed), Epistemology andMethololoy of Comparative Law (2004) 165, 167

remzks about ‘law in context’ in concrete comparative law research.”' Indeed, lawstudnts and lawyers may have little idea about how their own system operates.

Therefore, assertions are made but evidence may be often lacking For example, whileAusralian courts provide some statistics about their operation,” there are nocom)rehensive Statistics about something as basic as the frequency of administrative lawapplications and their outcome This indicates that it is not easy for comparative lawyerswho want to manage the ‘law in context’ approach in their comparative law research.Morcver, the problem that comparative lawyers usually face during the course ofconucting comparative law research is deciding ‘what is the relevant context for fullyand ccrrectly understanding (foreign) rules?’ Stating this problem, Van Hoecke wrote

as fellows:

“o what extent do we have to consider the environing [sic] legal rules, procedural rules and court

#rtctures, the constitutional context, legal history, legal culture, the social and economic context, etc? Hee the comparative lawyer is lost The relevance of each of those contexts is seldom explicitly nied, let alone discussed, in domestic research According to the topic, different contexts may have liverging relevance Occasionally some more theoretical legal research, including legal history, legal1odology and the like, may be available, but some overall theoretical framework is lacking.”

Ttis study follows Van Hoecke’s viewpoint in the sense that a comparative law

anaysis is not an exclusive study of law per se Indeed, comparative law requires

stucyng law within a ‘law and society’ framework as there is an interconnection between lawaid society in all its historical, political, social, economic and cultural dimensions.

3) Ibid Hoecke concluded that ‘a lot of comparative research has indeed focused on rules’ In foot note 2,Hoeck: cited S Whittaker and H Kozt who argued for the need to compare law in context and stressed that

‘due tc a lack of methodology it is easier to make such a general statement than to apply them in concreteresearch’ See also Penelope Nicholson, Borrowing Court Systems the Experience of the DemocraticRepubic of Vietnam, 1945-1976, unpublished PhD thesis, the University of Melbourne, 2000), 18.Nichoson refers to the paper on the common core of Socialist Constitutions by Christopher Osakwe whoagued for the need to contextually analyse Constitutions but failed to do so This example, as Nicholsonconclued, represents a common trend where comparative lawyers call for contextual analysis but do notprovic it.

3? Thee statistics can be obtained by referring to annual reports issued by the courts See an example of

some statistics in relation to migration related administrative law cases lodged (filed) in federal courtsprovied by the High Court, the Federal Court and the Federal Magistrates Court of Australia in Table 3.2

of Chipter Three of the thesis.

3 Hocke, above n 30, 167.

* Thic 167

While it is admitted that a theory of ‘relevant context’ of compared laws is still

lackin, this researcher has attempted to work out the relevant context of the compared

laws rlating to the topic of review of administrative action by courts and tribunals Aswill b: seen, in this Australian- Vietnamese comparative study, the researcher attempts toinvestgate the relevant laws and legal institutions of the two jurisdictions within thehistorcal, socio-political and legal context That is to say, when comparing the scope ofjudicially reviewable administrative action under the laws of Australia and Vietnam andsuggesting the extent to which the administrative law jurisdiction of Vietnamese courtsshoull be expanded, the issue needs to be analysed within the contexts of each legalsysten While a very broad scope of judicially reviewable administration is supported byAustralian conditions, in current Vietnamese conditions it is not feasible to expand theadministrative law jurisdictions of Vietnamese courts to the extent that almost alladministrative actions can be subject to judicial review, as is seen in the Australianjurisciction.”°

Mo:eover, as this comparative law research is concerned with a public law topic, thehistorical, socio-political and legal context is particularly important This is becausepublic aw embodies several specific characteristics that need to be considered in order to

obtain 3 desirable comparative analysis Schwarze summarises this as follows:

fit {public law] is concerned with the essential structural elements of the State This means,

furtlermore, that public law is determined to greater extent than areas of law by extra-legal factors,which are grounded in historical tradition, in political style and specific ideologies In consequence, thecon:epts of public law are formulated to greater extent than for example those of private law bynatinal beliefs and values concepts Its true content can be determined only if political influences,socal pressure, the effectiveness of the constitution and other factors are taken into account.°®

Ccnsequently, the reasons for the similarity or the difference between the laws of

both countries need to be analysed by reference to context In particular, to suggest any

solutiin based on the Australian experience that could be applicable for Vietnam, historcal, socio-political, economic and legal cultural factors of Australia as a donor

county and those of Vietnam as a recipient country need to be taken into consideration

However, it is also acknowledged that obtaining knowledge for contextual analysis of the

subjed matter in a foreign legal system like the Australian one is a difficult task for aresearcher who is not a ‘native’ lawyer to the legal system in question A good

?5 Seenore details in Chapter Four and Chapter Seven of the thesis

46 Jurgn Schwarze, European Administrative Law (1992), 86

uncestanding of legal rules and institution cannot be achieved without a profoundknowledge of the relevant political, social, historical and legal background It shouldthe-e ore be noted that while this researcher tries to analyse the Australian law in relation

to adninistrative law jurisdiction in its context, it is not realistic to expect him toexamne all factors affecting the context of the law under comparison In this research,the issue will therefore be mainly analysed within the constitutional, legal, institutionalanc }istorical environments of the both jurisdictions, Australia and Vietnam, in whichreviev of administrative action by courts and tribunals is performed As we will see ananzlysis of historical and constitutional background based on which the Australian andVietramese administrative review systems operate will be provided.””

Ir short, the ‘law in context’ approach to comparative law requires comparativelawy:rs to analyse not just law but also the connection between law and society Thisappreach can enable comparative lawyers to engage in productive comparative lawresearch which can effectively serve various aims and functions of comparative law theyintend

II COMPARATIVE LAW AND LEGAL REFORM: LEGALTRANSPLANTATION

4 Legal Transplantation: Possible or Impossible?

/s mentioned above, comparative law has various aims and functions For thepurp›se of this study, it is necessary to focus on the discussion about the significance of

the ise of comparative law as an aid to legislation and legal reform In this regard, comparative lawyers have generally proposed comparative law as an important tool assiting legal reformers in the course of building and improving their own legal

systm.? However, what is more important is how this ‘important tool’ can be usedeffetively in the course of legal reform In order to answer this question severalthecetical issues in relation to legal transplantation and its utility in practice will beconsđered in this section

Vatson, in his well known book ‘Legal Transplants: an Approach to ComparativeLaw acknowledges the role of comparative law in legal reform by stating that ‘thesystmatic knowledge of a foreign system can also be of the utmost practical value to

*” Fe more details about this analysis, see Chapter Twoof the thesis

” Se generally Zweigert and Kozt, above n L, 16-7; Bogdal, above n 4, 28-30; Cruz, above n 1, 19-20.

ono pne — 9045 | i

[ Œ to a law reformer seeking improvements for his own national system`.”” Sharingthi: vewpoint, Zweigert and Kozt emphasise the significance of comparative law in thelegslative area and affirm that comparative law can assist legislators all over the world toimjrcve the quality of their own legal system.” This is because, as Zweigert and Koztexjlan, by learning from others through a well-considered use of comparative lawmaeials, legislators can find solutions to legislative problems in their home countries.Asthey say:

[fcomparative analysis suggests the adoption of a particular solution to a problem arrived at in anotherccuntry one cannot reject the proposal simply because the solution is foreign and ipso facto

uiacceptable.*!

Vatson has created a famous phrase ‘legal transplants’ for the use of foreign law inthe course of legal reform, which is briefly defined as ‘the moving of a rule or system oflay tom one country to another, or from one people to another`.'” The phrase ‘legaltraislants’ has subsequently become the topic of many debates in which opposing viewsontte possibility of transplanting laws have appeared

/pproaching legal transplants from the historical perspective and focusing basically

on mrivate law,’ Watson strongly supports the possibility of legal transplants.“* He cOndudes that legal transplants ‘have been common since the earliest recorded history’*°

* Te theory of legal transplants by Watson is presented in his well-known book ‘Legal Transplants: an

Aproach to Comparative Law’ (above 5) and a range of his subsequent publications in relation to thetopi See for example, Alan Watson, above 3; Alan Watson, 'Aspects of Reception of Law’ (1996) 44 Ameican Journal of Comparative Law 335; Alan Watson, 'From Legal Transplants to Legal Formant (195) 43 American Journal of Comparative Law 469; Alan Watson, ‘Legal Culture v Legal Tradition’ in Max Van Hoecke (ed), Epistemology and Methodology of Comparative Law (2003) |, 1-7.

45 Vatson, above n 5, 21

and argues that the legal transplantation is a socially ‘easy’ process According to him,laws can be imported from ‘a very different legal system, even from one at a much higherlevel of development and of a different political complexion’.“© Watson believes thatwhat lawmakers should learn from foreign legal systems via the tool of comparative law

is ‘an idea’ that could be transformed into part of their own legal system Therefore, fromhis point of view, successfully transplanting laws need not necessarily depend upon theknowledge of ‘the political, social or economic context of the foreign law’ though itwould be more efficient if law reformers had such knowledge.*” He gives the example ofJapan in borrowing laws from France and Germany when this country was enacting itsPenal Code and Code of Criminal Procedure (in 1882) and the Civil Code (in 1898) Inhis opinion Japanese lawmakers were successfully in borrowing the French and Germanlaws rot because of ‘their knowledge of the French and German political context of thelegal rules’ or the political similarity between Japan with France or Germany, butbecause of their desire to import foreign laws

Hewever, Watson’s theory of legal transplants by Watson has been criticised bymany comparative lawyers Legrand, for example, claims that Watson reduces ‘legal’ to

‘rules , and ‘rules’ to ‘bare propositional statements’ in his phrase ‘legal transplants’ and ignores the impact of contexts on legal transplants.“® For Legrand, “[r]ules are just not

what hey are represented as being by Watson’”’ since a rule has its meaning as ‘a crucial element of the ruleness of the rule’ which is ‘itself culture-specific’.°° Consequently, as Legiraid agues, ‘rules cannot travel’*’ because ‘a crucial element of the ruleness of the rule - its meaning — does not survive the journey from one legal system to another’;>* in other words, ‘legal transplants are impossible’.

Another example of such criticism is that of Dupré who argues that the definition of

legal tansplants offered by Watson is both ‘narrow and loose’, especially when putting it

in the context of post-communist legal systems.’ Watson’s theory, as Dupré claims, is

“narrox° because he approached the issue mainly from the legal history perspective andlimited his study to the areas of private law, while it is ‘loose’ because many of Watson’spropositions for the theory of legal transplants were loosely expressed and therefore werenot alogether convincing."”

Dupré, however, acknowledges the value of Watson”s theory as “starting point forunderstanding post-communist transitions' Unlike Legrand, who argues for theimpossibility of legal transplants offered by Watson, Dupré accepts the commonality oftransplanting laws in the course of legal reform as she has a broad approach to theconcept of ‘legal transplants’ For Dupré, Legrand’s argument against ‘legal transplants’

is ‘based on Legrand’s concept of law contrasting that of Watson’ but not the practice oflegal reform.’ In other words, Legrand’s viewpoint on legal transplants is ratherextreme In the context of post-communist transitions, Dupré has maintained that ‘in fact,

‘lega! tansplants’ has now become a generic phrase to refer broadly to the influence of

foreign law on the drafting of new legislation and to the movement of law beyond national border°.'® By referring to the work of Gianmaria Ajani, Dupré also notes that the

tEFm ‘I:gal transplants’ includes not only transplants of legal rules but also transplants of institutional models.*” On this basis, there are a variety of words such as borrowing,

5“ Giee Catherine Dupré, /mporting the Law in Post-Communist Transitions: the Hungarian ConstitutionalCourt nd the Right to Human Dignity (2003), 40-2 Dupré’s work is mainly concerned with the ‘legaltramsplats’, taking place in Central and Eastern Europe in general and in Hungary in particular in theperiiod :f post-communist transitions

Strid, 0-2.

* IIbid,41.

*” IIbid.42 at foot note 9.

58 bid 42,

°° JIbid 43 Dupré refers to Gianmaria Ajani, ‘By Chance and Prestige: Legal Transplants in Russia and

Easster Europe’ (1995) 43 American Journal of Comparative Law 93, 93.

receptio, influences, transplants or imitation, which refer to the influences of foreignlaws anc legal institutions on the process of legal reform.”

Dup#`s viewpoint of accepting ‘legal transplants’ as a generic term reflects the factthat lawnakers usually learn from foreign legal systems in the course of reforming theirown legil system ‘Legal transplants’, therefore, are viable rather than impossible, asLegrand argues Researching on the legal development in South East Asia, AndrewHardingis right in his observation that:

As Aan Watson indicates, the ‘idea’ of a law can be transplanted successfully from one society to

anotler: South East Asia has been doing precisely this for hundreds of years.'

The a»ove comment is particularly true when examining the case of Vietnambecause as Gillespie points out, ‘Vietnam’s contemporary legal system is constructedfrom lesa transplants historically derived from China, France, the former Soviet Block,and moe recently East Asia and Western countries’ Chapter Two of this thesis willgive a cetailed analysis of the development of the Vietnamese legal system in relation tothe adninistrative review system demonstrating the above observation of Gillespie.Shairg Dupré’s viewpoint on legal transplants, this study assumes that it is possiblefor law nakers to seek foreign legal experiences that can be applied in their homecountry via the form of legal transplantation, especially when dealing with the same legalproblens To conduct a comparative research focusing on laws and legal institutions of

Australia and Vietnam with regard to review of administrative action by courts and

tribunas and examining the possibility to apply the Australian legal experiences in the contexio Vietnam, therefore, would be meaningful for Vietnamese legislators.

B Leal Transplantation: How to Successfully Transplant Law?

Whi accepting the possibility of transplanting law, a common concern is the questicn of how law can be transplanted successfully In other words, law reformers always aight to ask themselves whether proposed reforms which are based on foreign experizmes should or should not adopted Sharing this concern, Zweigert and Kozt, for

® Ibid, 4748 In her work, Dupré adopts the term ‘law importation’ which refers to ‘an active process of

creatior ad development of a new law on the basis of elements extracted from chosen foreign legal ordersand subseuently incorporated into the new body of law’ (ibid, 53).

St Andey Harding, ‘Global Doctrine and Local Knowledge: Law in South East Asta’ (2002) (51)

Internaiaal and Comparative Law Quarterly 35, 45.

52 John Cllespie, ‘Globalisation and Legal Transplantation: Lessons from the Past’ (2001) 6 Deakin Law

Review 26, 286

exanple, put two very important general questions which, according to them, must be

ask:d in the course of adopting a foreign solution.® The first question is whether thatsolition has been proved to be effectively applied in the donor country The secondquestion relates to the feasibility of the application of that solution in the host country.Both these questions must serve as a starting point for any study that is concerned withthe borrowing of foreign legal experiences As we shall see, in the course of conductingthis study, any Australian legal experience that is proposed for application in Vietnamwil: be examined so as to deal with these two questions

Acknowledging the significance of comparative law, Kahn-Freund also emphasisesthe role of ‘comparative law as a tool of law reform’ He believes that law makers use foreign law in the process of law making for several purposes,” and that they can do sovia legal transplantation However, from Kahn-Freund’s point of view, although laws andlegal institutions are possibly transplantable, legal transplantation is not an easyprocess.” Since laws remain deeply rooted in social institutions, the societal factors that impact on the transplantation of laws must be analysed.°’ Kahn-Freund reiteratesMontesquieu’s theory which posits that there are groups of factors that can impact on thesuccess of a legal transplant The first group are environmental factors such asgeographical factors, social and economic factors, and culture The second is the group ofpolitical factors, in which Kahn-Freund particularly stresses the differences between ‘the

communist world and non-communist world’, the various democracies and the ‘rolewhich is played by organised interests in the making and in the maintenance of legalinstiutions°.°Ê Assessing the role of these two groups of factors in legal transplantation,

Kahi-Freund argues that ‘the geographical, the economic and social, and the cultural

5 Zvyeigert and Kozt, above n I, 17

5 Oto Kahn-Freund, 'On Uses and Misuses of Comparative Law' in Otto Kahn-Freund (ed), Selected

elements have greatly lost, but that the political factors have equally greatly gained in

importance’.°? According to Kahn-Freund, there is a considerable risk of rejection in thecourse of legal transplants and anyone who intends to borrow foreign legal ideas should

be aware of this risk.” Thus, using the comparative method for the purpose of legalreform via the transplantation of laws ‘requires a knowledge not only of the foreign law,but also of its social, and above all its political, context’.”!

Recently, the legal transplantation theory of Kahn-Freund has been revisited inseveral country-focused studies about legal transplantation, amongst which are studies ofboth foreign and Vietnamese scholars about legal development in Vietnam.” Thesestudies acknowledge that the factors that can affect legal transplantation suggested byKahn-Freund are ‘highly likely to be relevant to the operation of any legal transplants’ ”*

In particular, they further develop valuable theoretical issues about legal transplantationraised by Kahn-Freund In his recent book, Gillespie has observed that the valuableinsight Kahn-Freund offered is his viewpoint of ‘degrees of transferability’ in legaltransplantation * Since law is closely linked to its environment, although the extent of

this linkage varies from case to case, in the course of legal transplantation some laws ‘are

23, 50-7 In this article, Nghia points out that Vietnam has a thousand year history of receiving foreign law,and outlines various ways through which Vietnam currently imports foreign legal ideologies FollowingKahn-Freund’s theory about legal transplantation in examining the case study of Luat doanh nghiep(Enterprise Law), Nghia analyses the three challenges facing the borrowing of foreign law in making thisLaw Nghia urges a deliberation in receiving foreign law on the basis of carefully considering Vietnam'sspecific conditions.

Tp Nicholson, above n 31, 25

TM See John Gillespie, above n 72, 21

?5 Whid 22,

variols This has been evidenced by the fact that while legal transplantation has beentaker place in many countries, the degree of success has varied from case to case.Gillespie synthesises Kahn-Freund’s legal transplantation theory and later legal-socidogical writings, in which he presented the three ‘working postulates’ identifyingsocic-political factors affecting the success of legal transplantation have been made.’°Thes three ‘working postulates’ are:

() Political-legal ideology: the success of legal transplants depends upon whethertransplanted laws comport with the dominant political-legal ideology of host

7

countries;’

(2) Power-distribution: legal borrowing is influenced by the power structure ofcountries of law importation which indicates ‘the ways legislators, bureaucratsand judges use state powers to make and enforce law’;”®

(3) Pressure groups: the success of legal transplants depends upon support from hostcountry special interests groups.”

As noted, for Watson, legal transplants are ‘easy’ and do not seem to be affected by

the factors as Kahn-Freund identifies The controversy between Kahn-Freund and

Watscn regarding legal transplants, as explained by Watson, is due to the very differentaims and approaches of the authors."” In addition, as Stein points out, since Kahn-Freund

and Watson focused on different phenomena, they reached different conclusions and

opinions with regard to legal transplants *"

[tseems to be clear that either view must be put in its specific context and it would be

reasoiable to accept the merits of each author’s view in this study While following the

viewpoint in accepting the commonality of legal transplants, this study works on the assumption that borrowing foreign law and legal institutions without knowledge of how

75 Tbic, 26-28

TT Ihic, 26-27.

78 Ibịc 28

7® Ibid, 28

8 See Alan Watson, above 3, 79-84

8! Se E Stein, 'Uses, Misuses-and Nonuses of Comparative Law' (1977) 72 Comparative Law North

Wesbrn University Law Review 198, 203.

they oyerate in their own political, socio-economic and legal cultural context and of thefeasibility of receiving such law and legal institutions in the host country would be adangenus idea Therefore, any attempt to adopt Australian legal experiences in thecontex of Vietnam needs to be carefully examined In practice, the modern lega! history

of Vienam has seen cases where borrowing foreign law and legal institutions has proved

to be insuccessful For example, a range of provision concerning citizens’ basic rightsand duies in the Constitution 1980 of the Socialist Republic of Vietnam was copied fromthe Castitution 1977 of the former Soviet Union Borrowing these provisions from theforme: Soviet Union without analysis as to whether they could be feasibly applied in thesocio-economic context of Vietnam led to these legal provisions becoming only ‘laws onpaper’ since Vietnam lacked a socio-economic foundation for making them feasible *”Al:o following Kahn-Freund’s viewpoints, this study assumes that there are the

‘degrees of transferability’ in legal transplantation This means that not all Australianexperizrces drawn from this study can be equally successfully applied in the legalcontext of Vietnam Thus suggestions for the improvement of the Vietnameseadminisrative law system in this study will be based on Australian experiences that aremore likely to be received in Vietnam than the other

In tle context of this study, the question arises whether specifically public law is

transferible and whether it is practical to conduct a comparative law study dealing with the admnistrative law of countries that have different legal and socio-political traditions (in che contexts of Australia and Vietnam) in the interest of legal reform As a subject of

comparitive law, public law has traditionally been regarded as an area of law determined

by featres that make it less comparable For example, Schwarze, as mentioned above,

points «ut that ‘public law is determined to a greater extent than other areas of law by

extra-legal factors, which are grounded in historical tradition, in political style andspecific ideologies”.* Public law in comparison with private law, as Koopmans argues,usually ‘has a more national character than private law'.“ Robin Creyke and JohnMcMilan share this viewpoint in a study comparing Australian-Indonesianadminitrative law also affirm that an administrative law system of a country has its own

® See T/ Thang, Lich su lap hien Viet Nam [Trans: The Vietnamese Constitutional History] (1997),

53-34.

83 See Snwarze, above n 36

8 Tim opmans, Courts and Political Institutions: a Comparative View (2003), 7