The rights of access to justice UNDP s approach and vietnamese perspective

VIETNAM NATIONAL UNIVERSITY SCHOOL OF LAW TRAN THI ANH HONG THE RIGHTS OF ACCESS TO JUSTICE: UNDP’S APPROACH AND VIETNAMESE PERSPECTIVE MASTER THESIS HA NOI - 2020 VIETNAM NATIONAL UNIVERSITY SCHOOL OF LAW TRAN THI ANH HONG THE RIGHTS OF ACCESS TO JUSTICE: UNDP’S APPROACH AND VIETNAMESE PERSPECTIVE Specialized in Law on human rights Code No.: 8380101.07 MASTER THESIS Supervisor: A/Prof VU CONG GIAO HA NOI - 2020 STUDENT DECLARATION I, Tran Thi Anh Hong, declare that this Master thesis is my work The figures, references, and examples are accuracy, honesty Student Tran Thi Anh Hong ACKNOWLEDGEMENTS With great joy, have I written this thesis, but I could not have done it all by myself Special thanks to A/Prof Vu Cong Giao, I could not wish a better instructor, who always by my side inspires me ―do not give up, not give up‖ His willingness to help students, have face-to-face meetings for discussions with every step of my research, has helped me complete my thesis Special thanks also to the School of Law, where we are always welcome Thank you, the Government of Australia, that has sponsored the postgraduate program of human rights, supporting us the diversity of learning materials and seminars relating to human rights At last, but certainly not least, my family and friends, who always encourage me to move on STUDENT Tran Thi Anh Hong TABLE OF CONTENTS Student declaration Acknowledgements Table of abbreviations List of figures and tables PREFACE CHAPTER 1: THEORETICAL ASPECTS OF THE RIGHT TO ACCESS TO JUSTICE 1.1 The conception of Justice and the Right to Access to Justice 1.1.1 Conception of Justice 1.1.2 Conception of the Right to Access to Justice 10 1.2 Characteristic and connotation of the Right to Access to Justice 14 1.3 Methods to ensure the Right to Access to Justice 17 1.4 The Role of the Right to Access to Justice 21 1.5 The Right to Access to Justice in International Law 23 Conclusion of Chapter 27 CHAPTER 2: THE RIGHT TO ACCESS TO JUSTICE FROM UNDP’S APPROACH 28 2.1 An overview of the Right to Access to Justice from UNDP’s approach 28 2.2 Elements that ensure the right to access to justice from UNDP’s approach 34 2.2.1 Legal Protection 34 2.2.2 Legal Awareness 39 2.2.3 Legal Aid and Counsel 43 2.2.4 Adjudication 49 2.2.5 Enforcement 56 2.2.6 Civil Society and Parliamentary Oversight 59 Conclusion of Chapter 62 CHAPTER 3: SITUATION AND SOLUTIONS TO PROMOTE THE RIGHT TO ACCESS TO JUSTICE IN VIETNAM: ANALYSIS FROM UNDP’S APPROACH 63 3.1 An overview of the Vietnamese legal system related to ensuring the right to access to justice 63 3.2 Elements that ensure the right to access to justice in Vietnamese law: Analysis from UNDP’s approach 65 3.2.1 Legal Protection 65 3.2.2 Legal Awareness 68 3.2.3 Legal Aid and Counsel 69 3.2.4 Adjudication 72 3.2.5 Enforcement 74 3.2.6 Civil Society and Parliamentary Oversight 78 3.3 Shortcomings and limitations in ensuring the right to access to justice in Vietnam 80 3.4 Solutions to ensure the right to access to justice in Vietnam following UNDP’s approach 88 3.4.1 Strategic Solution 88 3.4.2 Specific Solution 90 Conclusion of Chapter 92 CONCLUSION 93 REFERENCES 94 TABLE OF ABBREVIATIONS UNDP: United Nations Development Programme ICCPR: International covenant on Civil and Political rights ICESCR: International Covenant on Economic, Social and Cultural Rights ICT: Information and communications technology MARG: Multiple Action Research Group‘s MDGs: Millennium Development Goals MDGs: Millennium Declaration Goals NGOs: Non-government organizations NHRIs: National human rights institutions OECD: Organization for Economic Cooperation and Development SDGs: Sustainable Development Goals SIDA: Swedish International Development Cooperation Organisation UDHR: Universal Declaration of Human Rights UNICEF: United Nations Children‘s Fund UNODC: United Nations Office on Drugs and Crime WJP: World Justice Program LIST OF FIGURES AND TABLES Table 3.1: Public opinion about local governance 79 Figure 3.1: Social group analysis, guarantee of fundamental rights 67 Figure 3.2: Vietnam‘s factor scores in WJP 2020 81 Figure 3.3: Vietnam‘s disaggregated scores for each of the sub-factors in WJP 2020 81 PREFACE The urgency of the research topic If people break their arms, they probably go to a hospital If they have a persistent cough, they might go to a doctor or a medical clinic However, if they have a legal issue, such as an inheritance dispute, or a land dispute; in those cases, where people can solve their problem and how people can afford the services they need? Access to justice can help us answer that question Access to justice is commonly known as the ability to use the legal system to plan their lives and resolve disputes Justice is a concept that appears very early in human history, which exists in most human civilizations, ethnic traditions, and considers in various angles and aspects Access to justice is a fundamental human right and an indispensable tool to protect other human rights Justice and access to justice are essential for a fair society, which is the necessary condition for people to achieve freedom and happiness, so ensuring access to justice is also the top task of each country The feudal society of Vietnam recognized people‘s aspirations about the right and justice by criticizing injustice, criticizing social inequality, condemning the bad habits of the state machine The aspiration to burn a true justice of the Vietnamese people was also shown at the ―Judgment of the French Colonial Regime‖ by Ho Chi Minh: ―In Indochina, there are two types of justice One for the French, one for the native The French are judged as in France The Annamese have no jury, nor an Annamese lawyer Usually, the judge hears the judgment and verdicts the verdict in the absence of the defendant If the Annam and the French get a lawsuit, the French are always right, even though this guy robs or kills people‖ with the exposing the male‘s trial to the south (no jury council, no attorney, no accused, etc.) When claiming justice to the colonial countries in Indochina mentioned above, he also asserted: “The justice of the people of Vietnam is independent and free” International law notes access to justice is both - a fundamental right and a tool to protect other human rights In a sense being a fundamental human right, access to justice is regulated in the national legal system, tied to the personal demands of judicial remedies for the violation of rights in that country's jurisdiction With the meaning of a tool to protect other human rights, access to justice is an essential solution for individuals to have the opportunity to protect their rights Access to justice becomes a key goal in the mission of UNDP to alleviate poverty, resolve conflicts, and strengthen state governance UNDP emphasizes the need to focus on the ability to seek and provide remedial measures for injustice, especially for poor and disadvantaged people, including women, children, ethnic minorities, people living with HIV/AIDS and disabilities In the contexts of COVID – 19, the economic fallout of the crisis will put many groups in society further behind The impact of the crisis as well as the legal and policy responses developed by states to counter the spread of COVID-19 have much wider ramifications that affect a broad range of human rights, including the ability of people to access justice in a timely, fair, and effective manner The crisis also presents specific justice ‗needs‘, such as addressing the rise in gender - based violence and making additional institutional reforms to strengthen the effectiveness of the justice chain in a radically shifted social context [32] In Vietnam, justice is a crucial goal of socialism, so justice and justice access requirements are as urgent as the foundation of idealism and direction for all social policies However, Vietnam has not yet had many research According to current regulations, the assigned judge has the right to issue a ruling on acceptance or non-acceptance of the request If someone disagrees with the court‘s ruling, they can only have the right to review administrative formality procedures, not according to civil procedures This approach restricts the opportunities to equally and proactively present themselves to the court on injunction and evidence to prove that a case is fully eligible [25] (iii) Access to information Overall, more citizens in Vietnam are accessing legal information from a more diverse range of information sources than previously, explaining the positive change in access to legal information and the improved legal knowledge of citizens Nevertheless, about 26% of respondents are ―not interested‖ in legal information In the civil area, people not fully have enough knowledge of law due to restricted dissemination Therefore, every time a dispute occurs, or injustice is encountered, people usually not know what to (iv) Role of media Television in Vietnam is the most popular source of information cited Dissemination of legal information at the local level and village meetings and public loudspeakers is also common communication However, other specialized information sources, such as legal information websites and lawyers, are not a significant source of reference, and only 5% of respondents say they receive legal information from lawyers The rapid growth of the Internet has enabled better access to information for the people and helped drive cultural and socio-economic development As of December 2017, 28.35% of Vietnam households have Internet access; the number of Internet users increased from 30.8 million users in 2013 to approximately 50 million (54% of the population, compared to 30.8 million in 2013) [53] Comparing the 2012 and 2015 surveys show that 84 more citizens are accessing legal information from a more diverse range of information sources compared to previously Improvements in the sources of information help explain the positive changes in the level of legal knowledge among citizens recorded by the 2015 Justice Index survey However, in general, it is doubtful about the role of local media in proactively playing an effective role in promoting the right to access to justice (v) Legal knowledge and Constitutional awareness Legal knowledge about human rights and citizenship recognized in the Constitution in particular and Constitutional awareness plays a vital role in ensuring the right to justice In Vietnam, the 2013 Constitution provides for human rights and the basic rights of citizens Nevertheless, the Constitution‘s practice to protect human rights and citizenship depends significantly on people‘s perception of constitutional rights and procedures Meanwhile, in practice, people‘s awareness of constitutional formalities and human rights are still limited They even did not know the current Constitution announced in 2013[28] The 2015 Justice Index survey denotes some improvements since 2012 in citizens‘ legal knowledge Nevertheless, about 41% of respondents say they not know about the Constitution; only 12% of respondents were aware of the Constitution‘s amendments in 2013 (vi) Protection of fundamental rights in practice Compared to the 2012 survey results of the Justice Index, there has not been much change in respondents‘ assessment of the protection of rights in Vietnam practice A slight improvement recorded in guaranteeing freedom of expression and the right to access information, while a decline can see in other areas of guaranteeing civil rights, such as freedom of the press, the right to assembly, to associate, and to demonstrate, as well as freedom of belief and religion 85 There remain many challenges in striking a balance between protecting the traditional values, customs, and culture of the communities and combating discrimination and universalizing human rights enjoyment For instance, there remain difficulties in combating child marriages in ethnic minority communities or combating domestic violence in rural areas These are ―double challenges‖ as the communities facing these issues are usually also underprivileged in accessing public services Laws and policy awareness among these communities and their ability to adhere to them remain limited still (vii) Inequality and discrimination Disparities in access to justice exist across different social groups in Vietnam In particular, those who are poor, who have a low level of education, and are not part of the social elite face obstacles in access to information and access to local justice institutions, given their limited personal and social capital Following Justice Index 2015, nearly one-third of the survey respondents stated that local civil servants have discriminated against people living with HIV and homosexuals (viii) Women’s access to justice The right to access to justice for women is a fundamental right defined in international human rights law created by the United Nations with its member states The right to access justice for women is a fundamental element of the rule of law, along with the freedom, fairness, integrity, and reliability of the judicial system, the fight against corruption that other law enforcement agencies are needed (UN Women, 2010a) However, some recent studies in Vietnam by UN Women have shown that women face many difficulties accessing justice and seeking support from the authorities This troublesome harms women who experienced violence in particular and society‘s development in general, as nearly one-third of ever- 86 married women reported experiencing physical violence, about 10% of sexual violence, and over 50% of the experience of emotional violence are alarming numbers Other small-scale studies show that violence occurs in family, community, home, or abroad It includes physical, sexual, emotional, and economic violence, family violence, rape, sexual assault, trafficking, forced marriage, child marriage, and other forms [2] There are still discrepancies in the access to justice and protection of rights between men and women in Vietnam The proportion of women who accessed information, legal information, in particular, is lower than that of men Around 35% of the women who participated in the survey are ―not interested‘ in legal information, while this is only the case for 16% of men Overall, the level of legal knowledge of women is lower than that of men Women‘s appraisal of the protection of fundamental rights in practice, on most issues, is lower than of men Women also participate less in constituency meetings than men (ix) Right to participate Following Justice Index 2015, in Vietnam, respondents expressed their demand for more publicity and transparency of local budgets and expenditure, timely, adequate information on new laws, and publicly provided policies, showing that the right to participate at the grassroots level is still in need to be improved (x) Right to petition Around 74% of Vietnamese respondents of Justice Index 2015‘s survey considered that ―local authorities created favorable conditions to settle citizens‘ complaints in a timely and decisive manner,‖ while 20% stated that ―the complainant in their locality could be harassed in their life and work‖ Also, Vietnam does not have an effective mechanism to ensure the 87 right to complain and denunciation of violated officials and defendants in criminal proceedings Currently, the terms on ensuring the right to complain and denunciation have not yet clearly defined the responsibilities of the subjects conducting the proceedings in receiving and settling complaints and denunciations, make it challenging to apply this right (xi) Accountability Efforts to create an enabling environment for citizens to participate in the management of society should go hand in hand with ensuring local authorities‘ accountability The survey results show that in Vietnam, the methods for dealing with civil servants who have committed wrongdoings at the grassroots level are not yet transparent and rule-based Following Justice Index 2015, approximately 55% of respondents agreed with the statement that ―civil servants who have committed mistakes or wrongdoings admitted their mistakes publicly and took actions to correct them‖, while 51% of those surveyed stated that ―civil servants/officials who have committed wrongdoings are disciplined‖ 3.4 Solutions to ensure the right to access to justice in Vietnam following the UNDP approach 3.4.1 Strategic Solution For ensuring access to justice under UNDP‘s approach in Vietnam, it is a prerequisite to ensure that the law is built and served by the people and that it is fair to use the law to access justice In other words, ensuring access to justice should be concerned about the protection and participation of people in the building and passing laws, the right to access legal documents, and requiring laws to public, transparent, easy to access Based on the above findings, the following strategic solutions are: (i) Increased transparency and openness, and efficiency of local 88 justice institutions are preconditions for building and solidifying public confidence in the justice system at the grassroots level There must be concrete policies and measures in place to facilitate people’s access to information and friendly and effective quasi-judicial services, and to close the discrepancies in inequality and access to justice among vulnerable groups (ii) In tandem with the implementation of new laws on procedures and court reorganization, there is a need to strengthen judicial reform further to ensure efficiency, integrity, fairness, and transparency (iii) It is crucial to encourage and promote the development of lawyering and legal aid to support and protect people’s legitimate rights and interests in settling disputes and access to qualified and professional legal information and advice (iv) There is a need to shift the focus from legislative development toward implementing the law at all levels (v) Citizens’ fundamental rights and the reform of state agencies’ activities as enshrined in the 2013 Constitution should continue to be consolidated and protected Vietnam’s commitments to human rights protection also require responsible and effective implementation (vi) The participation of citizens in local governance and grassroots democracy can be improved through effective implementation of the Grassroots Democracy Ordinance (vii) There is a need to promote representative democracy by professionalizing elected bodies, the National Assembly and Provincial People’s Council in particular, and creating favorable conditions to ensure meaningful constituency meetings and relationships (viii) Development strategies based purely on economic development will not be sufficient to realize inclusive growth and sustainable development 89 agendas Judicial reform is an urgent priority in the coming period, precisely to renew the functioning and operations of judicial organizations for the people and ensure the constitutional rights and freedoms in practice 3.4.2 Specific Solution To overcome the limitations mentioned earlier to enhance access to justice under UNDP‘s approach in Vietnam requires comprehensive and longterm solutions, including those on improving legal provisions and solutions law enforcement International experience on the judicial system‘s reform to increase the balance of justice should be consulted, especially the broad, comprehensive approach to civil justice, which is people-centered instead of the court is centered Some specific solutions can be considered as follows: (i) Enhance the rule-of-law and legal reform to consolidate the institutional, legal, and policy foundation for the protection and promotion of access to justice Simultaneously, enhance administrative reform, prevent and combat corruption and undue bureaucratic burden, promote democracy, reinforce the rule-of-law, and strengthen institutions for the protection of human rights, including further, thorough deliberation of the possible establishment of a National Human Rights Institution In this process, the prerequisite is to ensure and encourage the people’s constructive participation, under legal provisions (ii) Strengthening sustainable development through implementing the SDGs and MDGs; focus on policies towards multidimensional poverty reduction and bridging the developmental gaps among geographic areas and population groups, with particular attention given to vulnerable groups In this endeavor, Vietnam shall reduce inequalities in access to services relating to access to justice, social security, and gender equality 90 (iii) Prioritize the right to education and promote human rights education to raise the people’s awareness and the capacity of law enforcement agencies to better ensure access to justice and fundamental freedoms for the people by Vietnamese laws and international human rights standards (iv) Develop a friendly court model, playing an essential role in providing information, guidance, helping people prevent and resolve conflicts, and help litigants without protection may exercise its rights and obligations in the proceedings’ course (v) There should be a control and supervision mechanism for judges to avoid power abuse when the litigation is only formal Courts need statistics, classification, and the distinction between civil cases with lawyers; without lawyers, only one party has a lawyer to adjust their roles accordingly and improve the litigants’ guiding role in the absence of lawyers (vi) Exploit information technology resources and social networking in court activities as fully as possible to reduce costs and increase the connection between the court and the litigants (vii) Promote and renovate the participation of the political system and people in propaganda, legal education about human rights in general, and access to justice in particular to improve the efficiency and quality of these activities (viii) Expand legal aid activities, support people, especially disadvantaged groups in society Create mechanisms to encourage and further promote the role of law-practicing organizations and social organizations in propaganda, promoting awareness of the law, human rights, and access to justice 91 Conclusion of Chapter Access to justice is a criterion for assessing a judicial system‘s effectiveness that has met the standard to represent judicial power in the rule of law state Access to justice can be considered a journey of people The journey may be pleasant or arduous depend on the obstacles that people face more or less These obstacles may lie in the proceedings, in the judiciary apparatus‘ organization and operation, in the attitude and sense of responsibility of public officials, and law awareness Identifying and removing these obstacles, opening up people‘s journey to seek justice is impossible not to if we want to ensure access to justice in Vietnam Vietnam has to address a wide range of internal and external challenges to allocating sufficient resources for development, mainly to implement policies to support and ensure the right of access to justice of vulnerable groups However, social security coverage is still modest, especially among the poor and other vulnerable groups The risk of worsening inequalities in access to services persists among different geographical areas, communities, and population groups Globalization and the Fourth Industrial Revolution on the one hand provide opportunities for trade and economic development and integration, productivity enhancement, and resource accumulation; on the other, they may also widen inequality Climate change and extreme weather events and other global issues that Vietnam and other countries have to address together may undermine human rights achievements, including the right to access to justice Therefore, the country needs to enhance the rule-of-law and legal reform to consolidate the institutional, legal, and policy foundation for the protection and promotion of access to justice 92 CONCLUSION When this thesis was in the aggregate, these figures amount to approximately two-thirds of the world‘s population – who face at least one of these justice issues Indeed, in all countries and contexts, people fall along a continuum of access to justice and exclusion from justice and are confronted with varying justice needs There is more work to be done to study access to justice within countries, understand their implications for human and economic development, and assess their impact on vulnerable populations to realize the SDGs commitment to leave no one behind When viewed as a whole, those categories of unmet justice need to provide a people-centered framework, putting people, not institutions, at the heart of the research and policy agenda for peaceful, just, and inclusive societies Importantly, it provides an appropriate framework at the individual level This understanding of unmet justice needs also provides a comprehensive framework Rather than focusing solely on issues that are already widely understood as justice issues – such as the need to resolve civil disputes or see crimes brought to a just conclusion – it adopts a more holistic view of justice This framework encompasses foundational issues that affect people‘s lives, such as the absence of peace and personal security and the lack of respect for human rights, and the inability to access legal protections or obtain a just resolution for everyday problems Lastly, the author hopes that this 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RIGHT TO ACCESS TO JUSTICE 1.1 The conception of Justice and the Right to Access to Justice 1.1.1 Conception of Justice ? ?The law is the art of goodness and justice? ?? (Jus est ars bony aequi) So what... contents, roles, and methods of assurance of access to justice; simultaneously, consider the position of access to justice in the international legal system of human rights Secondly, the study... Third, the Vietnamese legal system? ?s overview of ensuring access to justice assesses the level of compatibility and protection of Vietnam with the factors ensuring access to justice in UNDP? ? ?s opinion