The right to a fair trial in constitutions of some Asean countries and Vietnam: a comparative analysis

32 adopted at the 19 th session (9-17 / 7/2007) UNHRC, the right to a fair trial includes the following specific rights: (1) the equality before courts and tribunals; (2) the fair and[r]

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ASIAN CONSTITUTIONAL LAW:RECENT DEVELOPMENTS AND TRENDS

THE RIGHT TO A FAIR TRIAL IN CONSTITUTIONS OF SOME ASEAN COUNTRIES AND VIETNAM:

A COMPARATIVE ANALYSIS

A/Prof Truong Ho Hai

Institute of State and Law, Ho Chi Minh Academy of Politics, Vietnam

Abstract

The right to a fair trial is one of the basic human rights, which has been recognized by international human rights law and has become one of the particularly important principles in the proceedings of rule of law In fact, Asian countries have been implementing this principle both in terms of the provisions of the Constitution and the actualization of those provisions in practice The evaluation for the provisions of the right to a fair trial in the Constitution and the practical implementation of China, South Korea, Japan and Indonesia will provide valuable lesson for Vietnam in the process of judicial reform to meet the requirements of building the socialist rule of law in the current context

Keywords: The right to a fair trial; China; South Korea; Japan; Indonesia; Vietnam; Constitution 1 Introduction

The right to a fair trial is one of the particularly important principles in the proceedings of modern society, which is specified in the international human rights law system This provision not only is a basis for criminal prosecution and adjudication, but also determines the rights of the accused and defendant on equality before the court and judge; applicable principles in favor of the accused or defendant; the right to defense, public trial by a competent, independent, impartial court established by law This has become an internationally recognized standard for building an integrity of justice to protect the justice and human rights

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488 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS of Juvenile Justice (The Beijing Rules) (1985), United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990), Basic Principles on the Role of Lawyers (1990), etc

It is to address these problems: (1) comprehension and important components of the right to a fair trial; (2) the right to a fair trial in Asian constitutional laws (Vietnam and some coutries in Asia); (3) Useful lessons for Vietnam, the paper aims to focus on answering these questions: What are concept and components of the right to a fair trial? How is the right to a fair trial provided in the Asian constitutional laws? Are there similarities and differences in the provision and enforcement of the right to a fair trial in Asian countries today? What is the core values inherited and applied to Vietnam in the process of the judicial reform in the current context?

At present, there are 48 countries and territories in Asia with very different political institutions in these countries, including constitutional monarchy, absolute monarchy, parliamentary republic, and Islamic republic, mixed republic, presidential republic, socialist republic, etc This leads to the difference for structure and content of the Constitutions of the countries and territories Therefore, it is not feasible to observe, research and impart the content of each Constitution in all countries in this paper To ensure the representative, universality and selection condition of the values for Vietnam in the current context, this paper only focuses on the Constitution of the Socialist Republic (China), presidential republic (Indonesia), mixed republic (Korea), parliamentary monarchy (Japan)

2 The right to a fair trial in international human rights law

The right to a fair trial includes separate rights, represented under different names, such as the right to a fair hearing or the right to the proper (fair) administration of justice1, this is also the right to a public trial (except for cases of a private trial due to national defense, ethics or legitimate requirements of the litigants) by a competent, independent and impartial court trial established by the law

This is one of the basic human rights, recognized by international human rights law, in which Article 10 of the UDHR states: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”2 and the ICCPR also stipulates: “All persons shall be equal before the courts and tribunals In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law” (Article 14 (1))3; In addition, this right is provided for in the principles (14), (15), (3), (4) of the Bangalore Principles: A The judge and members of the judge’s family, shall neither ask for, nor accept, any gift, bequest, loan or favour in relation to anything done or to be done or omitted to be done by the judge in connection with the performance of judicial duties A judge shall carry out judicial duties with appropriate consideration for all persons, such as the parties, witnesses, lawyers, court staff and judicial colleagues without 1 Gudmundur Alfredsson & Asjørn Eide, Universal Declaration of Human Rights, 1948: Common goals of humanity

(translated by Nguyen Dang Dung, Vu Cong Giao and La Khanh Tung, 1st edition, Youth, 2017) p 234

2 Universal Declaration of Human Rights <https://www.ohchr.org/en/udhr/documents/udhr_translations/eng.pdf> accessed October 2019

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PA RT - CONSTITUTIONAL RIGHTS IN ASEAN MEMBER STATES: THE CASE STUDY OF MYANMAR AND VIETNAM

differentiation1 Therefore, the right to a fair trial is expressed in the following aspects: (1) The equal right between the court (representing the state, expressing the will and power of the state) and people Accordingly, the court cannot make judgments (impose its will) arbitrarily on any person and restrict any person’s rights and freedoms without complying with the proper order and procedures strictly regulated by the law; (2) Everyone (the plaintiff, respondent, accused, defendant or other related persons) and courts are equal and fair before the law Each subject has the rights and obligations as prescribed by the law, so the court making any judgment for the litigant must be done publicly with transparency, objectivity, impartiality and non-discrimination, strictly follow the order and procedures of the laws and respect objective truth (evidence, proof)

In the General Comment No 13 of the United Nations Human Rights Commission (UNHRC) (adopted at the 21st session (April 13, 1984)), it pointed out: the right to a fair trial for the purpose of ensuring the justice is carried out accurately, fairly and pursued to the end, whereby the litigants (the accused, defendant, plaintiffs, respondent and other related persons) have the equal right before the Court and before the Judge, have the the right to defense, a public trial by a competent, independent and impartial tribunal established by law2 Subsequently, UNHRC’s General Comment No 32 (replacing General Comment No 13) (adopted at the 19th session (July 9-17, 2007)) affirmed that: “The right to equality before the courts and tribunals and to a fair trial is a key element of human rights protection and serves as a procedural means to safeguard the rule of law”3 This shows that the right to a fair trial is the basic right of the people in general and the rights of proceeding participants in particular, for fairness, equality, the compliance with the law and respecting the objective truth are the most important nucleus of the trial, this is the basic right of the accused in criminal cases and of the parties in non-criminal cases before the judiciaries (the Public Security, the Procuracy and the Court), thereby, protecting the legitimate rights and interests of the rights and legitimate interests of the related parties

The right to a fair trial requires both the defendant and any other party in the process to have equal right in power and that all participants in the process in question must be treated without discrimination4 All parties to the hearing have the same procedural rights unless otherwise provided by the law Unless otherwise provided by law, any procedural inequality is based on reasonable and objective grounds, not entailing actual disadvantage or other unfairness for the defendant5 There will be no equal in power, if the prosecutor, for example, is able to appeal a specific decision, but the defendant is unable to appeal6 Therefore, all parties must be guaranteed a procedurally equal position throughout the hearing process and an equal position to litigate in conditions in order to not cause them significant disadvantage to the opponent This principle of equality on power means: (i) Both parties have reasonable time and means 1 United Nations Office on Drugs and Crime, “Commentary on the Bangalore Principles of Judicial Conduct” <https://

www.unodc.org/res/ji/import/international_standards/commentary_on_the_bangalore_principles_of_judicial_ conduct/bangalore_principles_english.pdf> accessed 02 October 2019 p 94, 100

2 UNHRC, General Comment No 13: Equality before the courts and the right to a fair and public hearing by an independent

court established by law (Art 14): 04/13/1984 CCPR General Comment No 13 (General Comments), paras 1-2

3 UNHRC, General Comment No 32: Right to equality before courts and tribunals and to a fair trial (Art 14): 9-17/7/2007

CCPR General Comment No 32, para 2.

4 Human Rights Committee, General Comment No 32, Article 14: Right to equality before courts and tribunals and to a fair trial, para

5 Human Rights Committee, Views of 23 July 2007, Dudko v Australia, Communication No 1347/2005, para 7.4. 6 Human Rights Committee, Views of April 2003, Weiss v Austria, Communication No 1086/2002, para 9.6, and

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490 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS to prepare for the litigation and have a real opportunity to present their arguments and evidence, and refute or respond to an opponent’s arguments or evidence; (ii) Both parties have the right to consult and be represented by a legal representative or other qualified individual with their selection in the proceeding process; (iii) If one of the parties does not understand or not speak the language used by the judiciary, they must be assisted by an interpreter; (iv) The rights and obligations of both parties may be affected only by judgments based only on evidence presented in the court; (v) Both parties have the right to appeal the decision of the first instance court before a higher judiciary 1

In fact, the complete determination for the components of the right to a fair trial is not easy because the international human rights law is growing and perfecting; furthermore, depending on the economic, social, cultural, religious, political conditions and development of the regional and national legal system, each region has specific rules and interpretations of this right

The Article of the European Convention on Human Rights in 1950 (ECHR) stipulates: everyone has the right to a fair trial and a public trial within a reasonable time by an independent and impartial court established by the law to make any judgment of civil rights and obligations or criminal liability Any criminally charged person shall be considered innocent until they are found guilty under the law and shall be promptly notified in the language which they can understand and the reasons for the charge; got timely legal assistance; fully verified with the witnesses and evidence; supported with the interpreters if they not understand the language used in the court Such judgment must be published publicly except for what is not legally permitted (such as relating to dignity, morality, national security and defense, minors or at the request of the litigants on privacy protection and influence on the enforcement of justice)2, the comments of Commission on Human Rights and Equality of the European Union also stipulates that the right to a fair trial include: the right to a fair trial, a public trial (except for cases of protecting secrets, dignity of the litigants or minors and protecting the interests of national security and defense); be heard by a independent, impartial trial, established by law and within a reasonable time3 Similarly, in Dakar Declaration and Recommendation on the right to a fair trial in Africa in 1999, the right to a fair trial is integrated including the following specific rights: (1) the equal right before the court and heard by an independent, impartial, public court; (2) the right to defense; (3) the right to trial by a juvenile proceeding; (4) the right to appeal; (5) the right to compensation for unjust conviction; (6) The right not to be tried for the same crime twice; (7) No criminal prosecution for failing to fulfill military obligations; (8) No offense will be imposed if the act does not constitute a crime at the time of acting according to the law; (9) No retrospective and research application when referring to the right to a fair trial4

1 International Commission of Jurists, Notebook for Trial in Criminal Procedure: Practical Manual No (translated by Pham Doan Trang, 2015) <https://www.icj.org/wp-content/uploads/2017/10/Universal-Trial-Observation-Publications-Reports-Practitioners-guide-2015-VIET.pdf> accessed 29 September 2019 tr 93

2 European Court of Human Rights, Council of Europe, European Convention on Human Rights <https://www.echr.coe. int/Documents/Convention_ENG.pdf> accessed 11 October 2019 p 9-10

3 Equality and Human Rights Commission, The Human Rights: Human Lives A Handbook for public authorities <https:// www.equalityhumanrights.com/sites/default/files/human_rights_human_lives_a_guide_for_public_authorities.pdf> accessed 11 October 2019 p 22

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Recently, in the General Comment No 32 adopted at the 19th session (9-17 / 7/2007) UNHRC, the right to a fair trial includes the following specific rights: (1) the equality before courts and tribunals; (2) the fair and public hearing by a competent, independent and impartial tribunal; (3) presumption of innocence; (4) the rights of persons charged with a criminal offence; (5) the rights of juvenile persons in trial; (6) review by a higher tribunal; (7) compensation in case of miscarriage of justice; (8) the right not to be tried twice (Ne bis in Idem)1

Thus, on the basis of the provisions of international human rights law, the right to a fair trial must include the following specific rights: (1) the equal right before courts and tribunals and a fair trial, a public trial by a competent, independent, impartial court; (2) the right to presume innocence; (3) the right of persons charged with an offence and the right to trial by a juvenile proceeding; (4) the right to a review by a higher tribunal, not to be tried twice and not to apply retroactive effect These are the basic and core rights that make up the right to a fair trial are all recognized by the provisions of international, EU and African human rights laws

3 The right to a fair trial in constitutions of some Asian coutries

Japan was the first country to become a member of ICCPR in Asia in 1979; Korea only joined the convention in 1990; China has signed the ICCPR since 1998 but has not been approved yet However, recently, this country has continued to revise the legal system (such as the Criminal Procedure Code, etc.) to suit the requirements of the ICCPR; Indonesia became an ICCPR’s member in 20062 Ensuring

the right to a fair trial in proceedings in Asian countries is a constitutional content, in the Constitutions in these countries, this right is expressed through the following specific rights:

3.1 The equal right before courts and tribunals and a fair trial, a public trial by a competent, independent, impartial court

Paragraph 1, Article 14 of the ICCPR on ensuring the equal right before courts and tribunals not only applies to the courts and tribunals, but this rule must also be respected at any time when national law gives a competent judiciary for trial and be tried fairly and publicly by a competent, independent and impartial court as prescribed by law in cases of decisions of criminal charges against individuals or their rights and obligations in civil cases3

Accordingly, the constitution of People’s Republic of China states: “The people’s courts of the People’s Republic of China are the judicial organs of the State” (Article 123)4, similarly, the Constitution of Japan also stipulates: “The whole judicial power is vested in a Supreme Court and in such inferior courts as are established by law” (Article 76)5; The Constitution of Republic of Korea states that: 1 UNHRC, General Comment No 32: Right to equality before courts and tribunals and to a fair trial (Art 14): 9-17/7/2007

CCPR General Comment No 32, paras 7.

2 VNU School of Law, Introduction to International Covenant on Civil and Political Rights(ICCPR, 1966) (Hong Duc, 2012) p 62-64

3 International Covenant on Civil and Political Rights 1966 <https://treaties.un.org/doc/publication/unts/volume%20 999/volume-999-i-14668-english.pdf> p 176 accessed 01 October 2019

4 China (People’s Republic of)’s Constitution of 1982 with Amendments through 1998, 1999, 2004, 2018 <constituteproject. org> accessed 11 October 2019 p 31, article 123

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492 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS “Judicial power belongs to court consisting of judges” (Article 101 (1))1 and the Constitution of the Republic of Indonesia states: “The judicial power shall be independent and shall possess the power to organise the judicature in order to enforce law and justice The judicial power shall be implemented by a Supreme Court and judicial bodies underneath it in the form of public courts, religious affairs courts, military tribunals, and state administrative courts, and by a Constitutional Court Other institutions whose functions have a relation with the judicial powers shall be regulated by law”2 This shows that, all countries stipulate that the Court is the main agency and directly conducts trial activities

Therefore, the provision of equal right before the courts and tribunals ensures equal access and equality between the parties in the proceeding relationship, whereby the parties have no discrimination This right is not only for citizens of the Convention member countries, but also for all individuals, regardless of their nationality or social status This right is violated when a particular person is prevented from bringing a lawsuit against others for reasons of race, ethnicity, skin tone, language, religion, gender, political opinion, or sexual orientation, social status, etc.3 The equal right before courts and tribunals also requires equal assurance between the parties, that is, the same procedural rights apply to all parties, unless this distinction is based on law and evidence of objectivity and rationality, which are not actual disadvantages or other unfairness to the accused According to the Constitution of the Republic of Indonesia, “Every person shall have the right to be free from discriminative treatment based upon any grounds whatsoever and shall have the right to protection from such discriminative treatment” (Article 28I (2))”4 and The Constitution of Republic of Korea also states that “All citizens have the right to be tried in conformity with the law by judges qualified under the Constitution and the law” (Article 27 (1))5 Therefore, all countries’ Constitutions stipulate this right because the equality between the parties is not guaranteed if only having the prosecutor without the accused, the defendant to appeal the decision of the court This rule also applies to civil cases and requires each party the opportunity to argue about all the arguments and evidence provided by the other party

Moreover, this right also requires that similar cases must be handled in the same procedure, if there are exceptions in criminal proceedings or the establishment of special courts for resolution in any specific cases, the objectivity and rationality must be proved on this distinction The Constitution of Japan states: No person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law (Article 31); No person shall be denied the right of access to the courts (Article 32); No person shall be apprehended except upon warrant issued by a competent judicial officer which specifies the offense with which the person is charged, unless he is apprehended, the offense being committed (Article 33); No person shall be arrested or detained without being at once informed of the charges against him or without the immediate 1 Korea (Republic of)’s Constitution of 1948 with Amendments through 1987 <constituteproject.org> accessed 10

October 2019 p 21

2 Indonesia’s Constitution of 1945, Reinstated in 1959, with Amendments through 2002 <constituteproject.org> accessed 11 October 2019 p 12

3 International Commission of Jurists, Notebook for Trial in Criminal Procedure: Practical Manual No (translated by Pham Doan Trang, 2015) <https://www.icj.org/wp-content/uploads/2017/10/Universal-Trial-Observation-Publications-Reports-Practitioners-guide-2015-VIET.pdf> tr 44, accessed 29 September 2019

4 Indonesia’s Constitution of 1945, Reinstated in 1959, with Amendments through 2002 <constituteproject.org> accessed 11 October 2019 p 12

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privilege of counsel; nor shall he be detained without adequate cause; and upon demand of any person such cause must be immediately shown in open court in his presence and the presence of his counsel (Article 34)1

The justice and publicity in judicial activity is an important value, especially in trial activities, because the conduct of judges affects the entire judicial system, so the Bangalore Principles on the conduct of judicial activities clearly stipulates: “The behaviour and conduct of a judge must reaffirm the people’s faith in the integrity of the judiciary Justice must not merely be done but must also be seen to be done”2 Therefore, the fairness and publicity in judicial activities is an important principle; The right to a fair trial and a public trial of judgments is one of the foundations of the right to a fair trial To be fair, public, the court must ensure citizens and the media can attend the trial and must be available to the public to access documents in the court (except for non-public confidential documents in accordance with procedural laws), especially judgments and other decisions, as well as administrative information related to the court3 The fairness of proceedings entails the absence of any direct or indirect influence, pressure or intimidation or intrusion from whatever side and for whatever motive, a hearing is not fair if, for instance, the defendant in criminal proceedings is faced with the expression of a hostile attitude from the public or support for one party in the courtroom According to the Constitution of Republic of Korea, “Trials and decisions of the courts shall be open to the public: However, when there is a danger that such trials may affect the national security or disturb public safety and order, or be harmful to public morals, the trials may be closed to the public by court decision (Article 109)”4

The courts are bound to give notice of the time and place to the public and ensure favorable conditions for the participation of interested persons The requirements for a public hearing does not necessarily apply to all appellate proceedings, which may take place on the basis of written representation, or pre-trial decisions by the prosecutor or other competent state agency The Constitution of Japan states that: The trials shall be conducted, and judgment declared publicly Where a court unanimously determines publicity to be dangerous to public order or morals, a trial may be conducted privately (Article 82)5

In addition, the independence of the court, first and foremost, is independent of the legislative and executive branch, to ensure that access to the court applies to all those charged with criminal offenses This right cannot be restricted and any criminal conviction, by a non-court agency, will not be accepted The independence of the judges and courts has two aspects: independent agency and independent individuals Both demand that neither the judiciary nor the judges be subordinates of any other state agency: (i) An independent agency, that is, judge and court must be independence from other branches of power, for which one of the requirements is that the judge is not subordinates, nor responsible to other branches of government, especially the executive This also means that all other state institutions 1 Japan’s Constitution of 1946 <constituteproject.org> accessed 10 October 2019 p 7-8

2 United Nations Office on Drugs and Crime, “Commentary on the Bangalore Principles of Judicial Conduct” <https:// www.unodc.org/res/ji/import/international_standards/commentary_on_the_bangalore_principles_of_judicial_ conduct/bangalore_principles_english.pdf> accessed 02 October 2019, p 67, paras 108

3 United Nations Office on Drugs and Crime, “Hướng dẫn tăng cường lực liêm tư pháp” <https://www. unodc.org/documents/southeastasiaandpacific/2014/04/judicial-vietnam/UNODC_-_Judicial_Integrtiy_Vietnamese pdf> ngày 2/10/2019

4 Korea (Republic of)’s Constitution of 1948 with Amendments through 1987 <constituteproject.org> accessed 10 October 2019 p 22

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494 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS are obliged to respect and obey judicial rulings and decisions; (ii) An independent individual means that the judge must be independent from other members of the judiciary1

In fact, the independence of the court is understood in three aspects: (1) the independence of the court with the legislature and the executive agency; (2) the independence of the judge at trial, no one and no agency can interfere with the judicial activity that falsifies the justice; (3) the independence of each level of jurisdiction The system of courts consists of completely independent levels of trial on the basis of law, judge’s attitude of law and objective truth2

This requirement needs to have both independence relating to the procedures and standards for the appointment, promotion, transfer, suspension and termination of the judge and the guarantees related to the security from the authority term of operation to retirement age or end of term Thereby ensuring the independence of the judiciary from political interference from the executive and legislative branch The Constitution of Republic of Korea provides for: Judges shall rule independently according to their conscience and in conformity with the Constitution and Act (Article 103)3 Therefore, the countries must apply special measures to ensure the independence of the judiciary, protect the judge from any form of political influence in making decisions by provisions in Constitution or approve laws regulating objective procedures and criteria for the appointment, salary, term security, promotion, suspension and dismissal of members of the judiciary and apply discipline against them The judges may be dismissed only on the basis of serious misconduct or incompetence, based on fair procedures that ensure objectivity and impartiality provided by the constitution or laws The dismissal of judges by the executive branch, prior to the end of their term, without giving specific reasons and without legal protection for argument of dismissal is inappropriate with standards ensuring the independence of judiciary In the Constitution of Japan stipulates: All judges shall be independent in the exercise of their conscience and shall be bound only by this Constitution and the laws (Article 76)4; The Constitution of Indonesia also states: “Each justice of the Supreme Court must possess integrity and a personality that is not dishonourable, and shall be fair, professional, and possess legal experience” (Article 24A (2))5

In order to ensure the right to a fair trial, the trial activities of judges and the trial panel must be impartial and unbiased, meaning that the judges make decisions or any judgments that are not based on personal bias/prejudice for a specific case, including acts promoting the interests of one of the parties, leading to damage to the other party and certain judiciaries must be properly supervised to ensure the impartiality Therefore, the Constitution of People’s Republic of China stipulates that all cases handled by the people’s courts, except for those involving special circumstances as specified by law, shall be heard in public The accused has the right of defence (Article 125); The people’s courts shall, in accordance with the law exercise judicial power independently and are not subject to interference by administrative organs, public organizations, or individuals (Article 126); (1) Citizens 1 International Commission of Jurists, Notebook for Trial in Criminal Procedure: Practical Manual No (translated by Pham Doan Trang, 2015) <https://www.icj.org/wp-content/uploads/2017/10/Universal-Trial-Observation-Publications-Reports-Practitioners-guide-2015-VIET.pdf> accessed 29 September 2019 tr 48

2 Dao Tri Uc, Curriculum of the rule of law (VNU, Hanoi, 2015) p 200-201.

3 Korea (Republic of)’s Constitution of 1948 with Amendments through 1987 <constituteproject.org> accessed 10 October 2019 p 21

4 Japan’s Constitution of 1946 <constituteproject.org> accessed 10 October 2019 p 14.

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of all nationalities have the right to use the spoken and written languages of their own nationalities in the court proceedings The people’s courts and people’s procuratorates should provide translation for any party to the court proceedings they are not familiar with the spoken or written languages in the locality In an area of living by people of a minority nationality in a compact community or by a number of nationalities, the hearings should be conducted in the language in common use in the locality; indictments, judgements, notices, and other documents should be based on actual needs, in the language in common use in the locality (Article 134)1

3.2 The right to be presumed innocence

The right to presume innocence is an important human right, one of the guarantees for conducting the right to a fair trial With that importance, Article 11 (1) of the UDHR states: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence”2 and as provided in Article 14 (2) of the ICCPR: “Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law”3 Therefore, the Constitution of Republic of Korea states: “In a case where a confession is deemed to have been made against a defendant’s will due to torture, violence, intimidation, unduly prolonged arrest, deceitor, etc., or in a case where a confession is the only evidence against a defendant in a formal trial, such a confession shall not be admitted as evidence of guilt, nor shall a defendant be punished by reason of such a confession (Article 12 (7)) and “The accused shall be presumed innocent until a judgment of guilt has been pronounced” (Article 27 (4))4

This is an important principle in protecting the human rights, forcing the procedural agencies to prove the criminal conduct of the litigant, ensuring that no guilt can be deducted until the accusation is proved on the basis of the arguments of the law and evidence At the same time, it is also an obligation for the government agencies to restrict the anticipation of the result before the trial, to avoid baseless statements that affirm the guilt of the defendant The defendant shall not be handcuffed or held at the horseshoe during the trial The press is not announced the information to affect the principle of the innocence presumption Moreover, the time of pre-trial detention is not considered to imply the guilt and the seriousness of the crime Not applying the bail or finding legal liability in the civil proceedings will not affect the principle of innocent presumption 5 Therefore, the Constitution of Japan states: “No person shall be compelled to testify against himself Confession made under compulsion, torture or threat, or after prolonged arrest or detention shall not be admitted in evidence No person shall be convicted or punished in cases where the only proof against him is his own confession” (Article 38)6 1 China (People’s Republic of)’s Constitution of 1982 with Amendments through 2004 <constituteproject.org> accessed

11 October 2019 p 31-32

2 Universal Declaration of Human Rights <https://www.ohchr.org/en/udhr/documents/udhr_translations/eng.pdf> accessed October 2019

3 International Covenant on Civil and Political Rights 1966 <https://treaties.un.org/doc/publication/unts/volume%20 999/volume-999-i-14668-english.pdf> accessed 01 October 2019 p 176

4 Korea (Republic of)’s Constitution of 1948 with Amendments through 1987 <constituteproject.org> accessed 10 October 2019 p 5,

5 UNHRC, General Comment No 32: Right to equality before courts and tribunals and to a fair trial (Art 14): 9-17/7/2007

CCPR General Comment No 32, para 30.

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496 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS 3.3 The right of persons charged with an offence and the right to trial by a juvenile proceeding

Under the provisions of Article 14 (3) of the ICCPR, the persons charged with crimes have the right1: (a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him This is the minimum guarantee in the criminal proceedings This guarantee applies to all criminal cases, including those not incarcerated The right to be informed immediately requires information given as soon as possible to the relevant person charged with an offence according to the laws of each country; (b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing This provision is an important guarantee for the fair trial and the application of the equality principle among the parties This includes access to documents and other evidence; this approach will definitely include all documents and plans to prosecute in the court against the person charged with the offence or the documents for the impeachment The impeachment document includes not only documents that establish the innocence, but also other evidence that can support for the justification The person charged with the offence has the right to contact a lawyer to request that the person charged with the offence has immediate access to the lawyer The lawyer may meet the client individually and to contact the person charged with the offence in conditions of fully respecting the confidentiality of the contact Moreover, the lawyer can give advice and represent the persons charged with the offence according to professional ethical standards as recognized without limitation, influence, pressure or interference from any party; (c) to be tried without undue delay This is not just to limit the detention for too long in the event of uncertainty about their destiny and if there is detention during the trial period, the guarantee is necessary, for the purposes of the justice The rationality should be assessed in the circumstances of each case, taking into account the complexity of the case; (d) Firstly, be at the court The procedure with the absence of the person charged with an offence only in circumstances permitted for the benefit of judicial management; Secondly, to defend himself in person or through legal assistance of his own choosing; Thirdly, to have legal assistance assigned to him at any time, even if he does not have sufficient means to pay for it The constitution of Japan states that: In all criminal cases the accused shall enjoy the right to a speedy and public trial by an impartial tribunal He shall be permitted full opportunity to examine all witnesses, and he shall have the right of compulsory process for obtaining witnesses on his behalf at public expense At all times the accused shall have the assistance of competent counsel who shall, if the accused is unable to secure the same by his own efforts, be assigned to his use by the State (Article 37)2; (e) to examine, or have examined, the witnesses against him This provision ensures the principle of equality between the parties, which is an important requirement to ensure an effective defense; (f) to have the free assistance of an interpreter if he cannot understand or speak the language used in court This right applies to all oral proceedings, to the foreigners, as well as to the citizens whose mother tongue differs from the official language used in the court; (g) not to be compelled to testify against himself or to confess guilt

These provisions are intended to ensure that no person charged with an offence is subject to any direct, indirect, or psychological pressure from investigating agencies against the person charged with an offence, i.e brutal, inhuman or degrading torture, treatment or punishment as provided in 1 International Covenant on Civil and Political Rights 1966 <https://treaties.un.org/doc/publication/unts/volume%20

999/volume-999-i-14668-english.pdf> accessed 01 October 2019 p 177

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Article of the ICCPR On that basis, the Constitution of Republic of Korea in 1987 also stipulates: Any person who is arrested or detained shall have the right to prompt assistance of counsel When a criminal defendant is unable to secure counsel by his own efforts, the State shall assign counsel for the defendant as prescribed by Act (Article 12 (4)); No person shall be arrested or detained without being informed of the reason therefor and of his right to assistance of counsel The family, etc., as designated by Act, of a person arrested or detained shall be notified without delay of the reason for and the time and place of the arrest or detention (Article 12 (5)); All citizens shall have the right to trial in conformity with the Act by judges qualified under the Constitution and the Act (Article 27 (1)); All citizens shall have the right to a speedy trial The accused shall have the right to a public trial without delay in the absence of justifiable reasons to the contrary (Article 27 (3)); The accused shall be presumed innocent until ajudgment of guilt has been pronounced (Article 27 (4))1

In addition, Article 14 (4) of the ICCPR also provides that in the case of juvenile persons, the separate procedure shall be conducted2 This is to ensure that they will be treated in accordance with their age and to set the minimum age for which the children and minors are not subject to criminal liability

3.4 The right to a review by a higher tribunal, not to be tried twice and not to apply retroactive effect The right to a review by a higher tribunal (the right to appeal or protest) is provided for in Article 14 (5) of the ICCPR, everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law 3 This guarantee not only limits the mistakes in the proceeding process but also strictly controls judicial rights, moreover, the guarantee of the right to appeal and protest to protect the legitimate rights and interests of the convicted person and those with related rights, as well as guarantee the true belief of the people in the agency of enforcement/ protection of justice (court) In addition, Article 14 (6) of the ICCPR also provides that when a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law4; At the same time, Article 14 (7) of the ICCPR also stipulates that no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country5 This provision is intended to prohibit bringing a person who has been convicted, or acquitted of a criminal act before a similar court or before another court to convict the same such act For example, no one who can be acquitted by a regular court cannot be tried again for the same act by a military court, or another special court

1 Korea (Republic of)’s Constitution of 1948 with Amendments through 1987 <constituteproject.org> accessed 10 October 2019 p 5-7

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498 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS In addition, Article 15 (1) of the ICCPR also provides the right not to apply retroactive effect, that is, no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby 1 According to the Constitution of Japan, “No person shall be held criminally liable for an act which was lawful at the time it was committed, or of which he has been acquitted, nor shall he be placed in double jeopardy (Article 39)”2 and the Constitution of Republic of Korea also stipulates:“ No citizen is prosecuted for an act that does not constitute a crime according to the law in effect at the time of its implementation, nor who has to be tried twice (Article 13 (1))”3 This provision comes from the legal principle of “nullum crimen sine lege”, meaning that there is no crime without the law

Based on the international human rights law and The WJP project of World Bank (WB), the analysis and assessment of the practice of the right to a fair trial are as follows: (Indicators - with values between 0-1): (1) No discrimination during the trial process; (2) No corruption during the trial process; (3) Independence in trial is guaranteed; (4) Timeliness without delay is guaranteed; (5) The right of the accused and legal proceedings are guaranteed4

Each country has different organizational structure and operation of the court and the laws and regulations in each country have many dissimilarities, however, the indicators of the right to a fair trial in four countries of China, Japan, Korea and Indonesia have partly shown the correlation between the need for guarantee of the independence in judicial activities and no corruption in judicial activities with the right to a fair trial (Table 1)

Table 1: The indicator of the right to a fair trial in 2017-2018

Country discriminationNo corruptionNo Timeliness without delay

Guarantee of independence

Guarantee of right of the accused

and legal proceedings

Indicator of the right to a fair trial

China 0.40 0.53 0.65 0.23 0.51 0.46 Korea 0.68 0.72 0.78 0.70 0.77 0.73 Japan 0.82 0.79 0.68 0.71 0.73 0.75 Indonesia 0.26 0.41 0.50 0.43 0.36 0.39

Source: The World Justice Project5

2 Japan’s Constitution of 1946 <constituteproject.org> accessed 10 October 2019 p 9.

3 Korea (Republic of)’s Constitution of 1948 with Amendments through 1987 <constituteproject.org> accessed 10 October 2019 p

4 Mark David Agrast, Juan Carlos Botero and Alejandro Ponce, Rule of Law Index 2014 (The World Justice Project 2014) p

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The survey results show that those countries ensuring good independence and preventing corruption in effective trial will lead to a good improvement of other indicators, such as non-discrimination in trial; the right of the accused and legal proceedings are guaranteed, thereby, the right to a fair trial is increasingly improved

4 The right to a fair trial in Vietnamese Constitution

Vietnam became an ICCPR’s member in1982, but the right to a fair trial was written in 1946 Constitution (Article 67), 1959 Constitution (Article 101), 1980 Constitution (Article 133) and continues to be specified in 1992 Constitution (Article 52, 71, 72, 130, 131) and 2013 Constitution (Article 16, 31, 103) Particularly, the right to a fair trial is one of topics has been discussed in the recent judicial reform process of Vietnam

In the Vietnamese 1992 Constitution, such as: Article 52 provides for equality before the law; Article 130 states that “during trials, judges and people’s assessors are independent and subject only to the law”, the right to a fair trial is further supplemented by other provisions of the 1992 Constitution, for example, the right to defend1; the right to public hearing2 and the right to compensation for miscarriages of justices3 It was believed that the provisions of international treaties to which Vietnam is a party, like ICCPR, are considered a source of law which Vietnam should directly apply, in contrast to this view, some were concerned about the bias of the international standard of the right to a fair trial4 Generally, the provisions of the 1992 Constitution, which regulate the right to a fair trial, are similar to the relevant provisions of the ICCPR with the main purpose of ensuring a fair hearing However, the text of the right to a fair trial under the ICCPR is clearer than in the 1992 Constitution The expression in article 132 of the 1992 Constitution does not clearly ensure the right to a defense lawyer in any case: The right of the defendant to be defended is guaranteed The defendant can either conduct his own defence or ask someone else to it An organisation of barristers shall be set up to help the defendant and other parties in a law case to defend their rights and legitimate interests and contribute to the safeguarding of socialist legality Article 14(d) of ICCPR expresses strongly that legal counsel is provided to the accused in all cases Especially, the accused is provided a legal assistance without payment when the interests of justice so require: To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it

There are many factors affecting the right to a fair trial5, this part will not provide a comprehensive review of all aspects of the status of the right to a fair trial in Vietnam Rather, it will focus on two main aspects: (i) the impartiality and independence of individual judges and (ii) the role of defense lawyers The reason is that there are crucial tests of the extent to which the state is prepared to allow individuality in criminal process to an extent which even opposes state interests

1 Article 132 of the 1992 Constitution 2 Article 131 of the 1992 Constitution. 3 Article 72 of the 1992 Constitution.

4 Truong Ho Hai, The Development of a Human Rights Culture in Vietnam, 1986 to present (thesis for the degree of Doctor of Philosophy, The University of Leeds, School of Law, 2009), p 207 - 208

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500 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS The judicial reform in Vietnam has been carried out to overcome the shortcomings of the judicial system, with the aim of improving the quality of the judicial operation to meet the requirements of the fighting against crimes in the new context, of enhancing judicial bodies’ accountability to individuals, clearly defining tasks and responsibility of judicial officials in conducting judicial proceedings, and ensuring the constitutional rights1 The necessity of reforming the judicial system is by no means apparent in the views of the majority of the interviewees In order to remedy the situation, to reduce criticism of government so as to maintain its power, to bring more benefits for the community, to assure the international standards to attract more investment, to sustain a market economy, to improve the credibility of the leadership of Vietnam, and to establish a rule of law, the party leaders and legislators of Vietnam have carried out an ambitious judicial reform to re-establish and strengthen the judicial system by granting more independent powers to the court system The return after the 1992 Constitution to a stable legal and a judicial system is marked by the recent Party’s policies, the codification of important laws, the restructuring of the judicial system and fairer process for defendants, and the expansion of legal education and research Article 130 of the 1992 Constitution regulates that “during a trial, the judges and assessors are independent and shall only obey the laws”

Further reforms commenced with the amendments to the 1992 Constitution in 2001 Accordingly, the Political Bureau of the VCP passed the Resolution No on Forthcoming Principal Judiciary Task (Resolution No 8) in 2002 and Resolution No 49 on the Strategy of Judicial Reform (Resolution No 49) to 2020 in 2005 The most important feature of Resolution No 08/NQ-TW and Resolution No 49 is to enhance the judicial system Thus, it is to ensure the rights of trial fair, the Resolutions focused on improving these followings: impartiality and independence of individual judges and the right to adequate defense counsel

(1) Impartiality and independence of individual judges

The Resolutions No and No 49 express the determination of enhancing the independent judiciary system by stating that ‘judges and assessors shall be independent and only obey the law’; judges and procurators must ensure the basic principle of equality before the law and resolve cases objectively and independently Since then, the essential content of these Resolutions was legalised in recent legislative documents to further the legal framework for judicial reform with two major aims: to improve the effectiveness of the courts and to ensure judicial independence The relevant laws are the Criminal Procedure Code (2003) together with the Criminal Code (1999), the Law on Organisation of People’s Courts 2002 (LOPC 2002), Ordinance on Judges and People’s Assessors of People’s Courts (OJPA 2002) Article of the OJPA 2002 reaffirms the principle of independence of judges and assessors during a trial Additionally, article 38 of the LOPC 2002 provides that ‘interference with the work of judges and people assessors is strictly forbidden’ The promulgation of these laws has established a new judicial system with great improvements and has brought Vietnamese judicial system closer to international standards of due process Although, there are remaining problems with the judicial system in Vietnam, the courts have been more impartial and independent and the right to a defense lawyer has been greatly improved

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decide a judgment based on the facts and the law1 The independence and impartiality of the individual judges depend on a number of factors The Human rights Committee held, in the General Comment to the right to a fair trial set out by article 14, that the domestic constitution and laws should make sure that the courts are ‘independent, impartial and competent, in particular with regard to the manner in which judges are appointed, the qualifications for appointment, and the duration of their terms of office; the condition governing promotion, transfer and cessation of their functions and the actual independence of the judiciary from the executive branch and the legislative’2 The most important of which are: (i) appointment of judges and judicial independence, (ii) security of tenure, (iii) training and education, (iv) court budget and judges’ salary, and (v) party leadership3

(2) The right to adequate defense counsel

The right to a defense lawyer is central to protecting the individual’s rights at the pre-trial as well as trial stage of criminal proceedings According to the Resolution No 49/NQ/TW (2005), the development of lawyers with good ethics, adequate legal education, and high professional skills is one of the key issues of the strategy for the judicial reform until 2020 Objection to the past limits on representation by lawyers of their clients, the independence of professionals and the effective role of lawyers have been reformed recently through an Ordinance on Lawyers Organisations in 1987, or Ordinance on Lawyers in 2001 (37/2001/PL-UBTVQH10), and most recently, the Criminal Procedure Code 2003, and the Law on Lawyers 2006 The crucial factors affecting the right to adequate defense counsel, which this part will explore, are: the institutional independence of defense lawyer, adequate representation in trial by defense counsel, sufficient legal aid; adequate training and education

Within just over 10 years, many important laws are directly related to the right to a fair trial that have been issued and are constantly reviewed and amended to supplement the right more and more fully Especially, the Vietnamese Constitution in 2013 was established, marking a major change in the constitutional and legislative thinking in Vietnam, namely human rights-based constitution and legislation, which means the human rights in general and the right to a fair trial in particular is emphasized In particular, “The People’s Courts are responsible for the protection of justice, human rights, citizen’s rights, socialist regime, interests of the State and legal rights and interests of organisations and individuals ”(Article 102 (3))4 In addition, the 2013 Constitution also stipulates: No one shall be discriminated against based on his or her political, civic, economic, cultural or social life (Article 16 (2)); A defendant shall be regarded as innocent until the crime is proved in accordance with legal procedure and the sentence of the Court has acquired full legal effect The defendant must be tried timely, equally and publicly by courts within the time provided by law If the case is heard in a secret trial in accordance with the law, the verdict must be pronounced in public No one shall be tried twice for the same offence Any person who has been arrested, held in custody, prosecuted, investigated, charged or brought to trial in violation of the law shall be entitled to compensation for material and psychological damages and restoration of honour (Article 31 (1), (2), (3), (5)); Principles of litigation 1 See Chan, G., ‘Judicial Immunity and Independence of Vietnamese Judges: Reflections on the Ordinance on Judges

and Jurors and the Law on the Organisation of the People’s Courts’ (2005) Australian Journal of Asian Law 2 Human Rights Committee, ICCPR General Comment 13 (Twenty-first session, 1984) A/39/40 (1984) 143; The Law

Association for Asia and the Pacific, ‘The Beijing Declaration on Independence of the Judiciary’ (1997) p 4-7 3 Office of the High Commissioner for Human rights in Cooperation with the International Bar Association, Professional

Training Series No - Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers (United Nations New York and Geneva, 2003) p 123-135

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502 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS in trials are guaranteed First instance and appellate trials are guaranteed The right of the accused or the defendants to be defended, the right of the litigants to defend their legitimate interests are guaranteed (Article 103 (2), (3), (4), (5), (6), (7)), etc In order to ensure the right to a fair trial in practice, the State of Vietnam must continue to improve the legal system of organization, operation of the courts, procuracies and procedural law systems according to the Constitution 2013

Based on the provisions of the 2013 Constitution, many legal documents have been amended, supplemented, abolished or newly promulgated, including contents on the right to a fair trial, such as: Criminal Procedure Code 2015, Criminal Code 2015 (Amended 2017), Law on Organisation of People’s Courts 2014, etc The right to equality before the courts and the right to fair trial are provided for in the Constitution, the relevant laws and have come into practice Criminal Procedure Code 2015 spells out: “Criminal procedure occurs on the principle under which all people are subject to the same laws of justice, regardless of race, gender, belief, religion, social class and status Every person committing crime is treated under the law Every juridical person is equal before the law, regardless of its form of ownership and economic class” (Article 9); “A accused person is deemed innocent until his guilt is evidenced according to the procedures and formalities as defined in this Law and a Court passes a valid conviction If grounds for conviction, as per the procedures and formalities in this Law, not suffice, competent procedural authorities and persons shall adjudge the accused person to be not guilty (Article 13); “A Court holds trials in timely manner by the regulated deadline and upholds fairness A Court tries publicly and every person is entitled to attend the trial, unless otherwise stated in this Law For special cases involved in state secrets, national traditions, protection of persons aged below 18 or personal privacy as per litigants’ rational requests, a Court may try in closed session but must pronounce its judgments publicly” (Article 25); ect In order to implement these articles, in 2017, a Family and Juvenile Court was established to protect the rights of women and children under 18 years of age Procedure mechanisms are ensured to be open, transparent, respectful and protect human rights The court procedure is renewed The people’s access to justice is always affirmed In 2018, the Legal Assistance Centers received and implemented 58,887 legal aid cases for 51,608 turns of people, including 18,358 cases involving legal participation; litigation (up 12.7% compared to 2017) In particular, 100% of criminal cases that require the appointment of a defense lawyer have the participation of lawyers and legal assistants1.

Figure 1: The indicator of the right to a fair trial in China, Vietnam, Korea, Indonesia, Japan

Source: The World Justice Project2

1 Thu Thuy, Vietnam’s legal system on human rights getting better <https://vietnamnet.vn/en/society/vietnam-s-legal-system-on-human-rights-getting-better-603833.html>, accessed 13 December 2019

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The indicator of the right to a fair trial in Vietnam has changed in positive trend, approximately China and Indonesia but it is lower than Japan and Korea (Figure 1) It is showed that there has not been rapid achievement of judicial reform in Vietnam yet, especially, legal mechanism of ensuring the right to a fair trial

From the practice of prescribing the right to a fair trial in the Constitutions of China, Korea, Japan, Indonesia and Vietnam, may be get a lesson as follows:

Firsly, there is not a common judicial model that applies to every nation, but for the court to perform well the function of justice and human rights protection, the right to a fair trial must be guaranteed

Secondly, in order to ensure the right to a fair trial, the courts need to ensure the principle of independence in the trial In Vietnam, the 2013 Constitution stipulates that: “The Judges and Assessors are independent and shall only obey the law; interference with the trials of the Judges and Assessors by bodies, organisations, and individuals is strictly prohibited” Article 103 (2)1 In order to ensure this principle in practice, the court system in Vietnam needs to continue reforming the organization and operation, especially for administrative cases, cases of position and power (corruption) should be applied in the form of: the court at a higher level of the litigant to accept the case, it means that if the litigant is the communal officer, he will be accepted by the district level, the litigant at the district level is accepted by the provincial court, the litigant at the provincial court is accepted by the higher court, the litigant at the central is accepted by the supreme court

Thirdly, in order to ensure there is no corruption in judicial activities, it is necessary to enhance the publicity, transparency and accountability in the trial activities The Vietnamese Constitution in 2013 stipulates that “The People’s Courts shall hold their hearings in public In special cases, which require the protection of state secrecy, fine customs and beautiful habits of the nation, the protection of youths and the protection of privacy according to the legitimate requirement of the persons concerned, the People’s Courts can hold their hearings in secret” (Article 103 (3))2 Therefore, to ensure that there is no corruption in judicial activities, the Vietnamese court system needs to fully comply with the requirements of publicity, transparency and accountability in the judicial activities in accordance with the current Constitution and laws onions

5 Conclusion

The right to a fair trial is one of the important human rights and one of the modern principles of the trial to protect the justice and ensure the human rights Asian countries in the process of reform and transformation continue to renovate and perfect the judicial system, especially perfecting institutions, organizations, and court activities The right to a fair trial is stipulated in the Asian constitutional laws, but the implementation of this right in practice in the countries is different This shows that the right to a fair trial depends on many factors, the most important of which is to ensure the independence of the trials and prevent the corruption effectively in the trial activities

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504 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS of judiciary and procedural law with particular emphasis on ensuring the independence in the trial; repelling the corruption in the judiciary (especially the court)./

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