The right of Access to justice in constitutions of some Asian countries and lessons learned for Vietnam

Constitutions in many Asian countries have a separate chapter defining the basic rights and obligations of the citizens, for instance: Chapter II of the Constitution of the People’s Rep[r]

(1)

398 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS

THE RIGHT OF ACCESS TO JUSTICE IN CONSTITUTIONS OF SOME ASIAN COUNTRIES AND LESSONS LEARNED FOR VIETNAM

Dang Viet Dat1

Faculty of State and Law, Academy of Politics Region IV, Vietnam

Abstract

The right of access to justice is a social state, a requirement, as well as a duty of the state in organizing, enforcing and protecting the law, facilitating the general subjects (which also includes the state), and most importantly, in assuring individuals’ (human beings) unrestricted access to equality and justice in the most literal sense As a result, ensuring the right of access to justice is not merely a human desire but apparently an important criterion for measuring the development of a nation, a legal system In current practice, the right to access justice is one of the basic human rights recognized by modern international law Therefore, this paper aims to study the right of access to justice in Asian Constitutional Law and find valuable lessons for Vietnam to complete the legal system and institutions to protect human rights

Keywords: Right of access to justice; Asia; China; Korea; Japan; Vietnam 1 Introduction

Justice is one of the basic values that underlies and orients the whole process of completing the legal system, promoting judicial reform and perfecting the state Therefore, since the dawn of human civilization, justice has appeared as a burning aspiration for freedom, justice, right, humanity, and noble behaviors in each human being, and in every society The legitimacy and justice of a government are often judged by how the state recognizes, protects and guarantees the implementation of justice, so justice assurance is the goal of a democratic, progressvie state

Right of Access to Justice is the responsibility of the state in the organization, enforcement, and protection of law, to create conditions for individuals (the human beings) who are able to use the law to protect their rights and legitimate interests, as well as to compensate for losses caused by illegal acts of other entities Therefore, the assurance of the right of access to justice is not merely a desire

1 This paper is a part of the doctoral thesis titled “The legal mechanism to ensure the right of access to justice for female

(2)

399

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

of the human being, but it is also an important criterion in assessing the development of a nation, the progress and perfection of a state and a law

In a modern democratic society, the constitution is a political - legal contract between the people and the state on each party’s rights and obligations, in which the state has the responsibility for ensuring the basic human and citizen rights, including the right of access to justice In Asian countries, the constitutional content is manifested very diversely, depending on the main institution in the countries and territories; however, the contents regarding the protection of human rights, civil rights as well as functions and missions of the state agencies are clearly recognized

In order to clarify this fact, this article aims to address the following issues: What is the right of access to justice? How is the right of justice recognized in the Constitution of Asian countries? What are the core contents of the right of access to justice accepted and universalized by the Constitutions of Asian countries? What can Vietnam learn from the current practice of ensuring the right of access to justice for people in Asian countries?

The recognition and assurance of the right of access to justice in the Constitutions of Asian countries are very diverse and plentiful Within the scope of this article, the author has carried out a survey of some Asian countries, namely: China (a representative for the socialist republic regime), Korea (a representative for the mixed republic regime) and Japan (a representative for the constitutional monarchy regime) These are countries that share cultural similarities with Vietnam and, via strong reforms, have become “Dragons and Tigers” in Asia Therefore, Vietnam needs to learn useful lessons from the practice of assuring the right of access to justice in Constitutional laws among these countries to complete its present legal institutions for ensuring the right of access to justice

2 Right of Access to Justice: Concepts and Pillars 2.1 Concept of the right of access to justice

Access to Justice or Right of Access to Justice is a concept formed in the Anglo-American law1 In

as early as 1215, the Magna Carta Great Charter in British pledged: “To no one will we sell, to no one

will we refuse or delay, right or justice”, demonstrating the spirit of “To delay Justice is Injustice”2

Nowadays, the right of access to justice is one of the fundamental human rights3, mentioned by many

international organizations especially the UNDP (United Nations Development Programme), in their programs and projects

From a traditional perspective, the right of access to justice is considered in terms of the right to a fair trial This opinion is not only widely used in many countries, but also codified in international law since the Universal Declaration of Human Rights of 1948 (UDHR), in Articles 2, 7, 8, 9, 10, 11, and in the International Convention on Civil and Political Rights 1966 (ICCPR), in Articles 9, 14 and 26 In particular, Article of the UDHR stipulates that “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted to him

1 Deborah L Rhode, Access to Justice (Oxford University Press, 2004) p 47. 2 William Penn, Some Fruits of Solitude (Headley, 1905) p 86, para 393.

3 UNDP, Access to Justice: Practice Note <https://www.undp.org/content/dam/aplaws/publication/en/publications/

(3)

400 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS by the constitution or by law” This provision is further concretized in Article (3) of the ICCPR: “(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted”1

Along with that, Article 10 of UDHR also stipulates: “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 in Article 14 (1) of the ICCPR, it is also

further concretized: “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”3 In addition, the ICCPR also stipulates: “All persons are equal before the law and are entitled

without any discrimination to the equal protection of the law In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” (Article 26)4

The above approach is narrow; with this approach, the right of access to justice is acknowledged in four aspects: (i) To consider the goal of a justice approach to be a fair trial by using the judicial organs; (ii) The subjects are intended to include everyone; (iii) The scope of impact is mainly judicial institutions, so as to ensure the right to a fair trial; (iv) To focus on the development of capacity and institutions, especially on management and infrastructure of courts, law-making skills and judicial operations

However, in the changing socio - economic context, the UNDP has considered the access to justice as an important part of the UNDP’s mission to reduce poverty and strengthen democratic governance5 Therefore, the UNDP has proposed a new approach to the right of access to justice

that is “The ability of people to seek and obtain a remedy through formal or informal institutions of justice, and in conformity with the international standards on human rights”6

This is an approach in a broader sense, whereby the right of access to justice is understood as the right to seek compensation or remedy for injustices or damages that an individual or a group

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 174

2 United Nations Universal Declaration of Human Rights 1948, <https://www.ohchr.org/en/udhr/documents/udhr_

translations/eng.pdf> accessed 10 October 2019

5 UNDP, Access to Justice: Practice Note <https://www.undp.org/content/dam/aplaws/publication/en/publications/

democratic-governance/dg-publications-for-website/access-to-justice-practice-note/Justice_PN_En.pdf> accessed October 2019, p

6 UNDP, Programming for Justice: Access for All A Practitioner’s - Guide to a Human Rights-Based Approach to

(4)

401

of individuals, especially those belonging of vulnerable social groups (the poor, migrant workers, refugees, minorities, and so on) must suffer1 These injustices/damages may be caused by individuals

or legal entities in all areas of social life without being limited to criminal proceedings Moreover, the seeking of compensation/remedy is done through access to both formal and informal institutions of justice

Although the concept of the right of access to justice can be acknowledged from various different perspectives, the right of access to justice is normally acknowledged and judged from the perspective of judicial activities because of its close association with the protection of legitimate rights and interests, especially the rights and interests of the accused, the victims and the litigants with relevant rights and interests; and particularly its association with the stripping of the citizen’s freedom right, or many other civil rights

According to the European Court of Human Rights and the Council of Europe, the right of access to justice includes some core human rights, such as the right to a fair trial under Article of the European Convention on Human Rights (ECHR) and Article 47 of the Charter of Fundamental Rights of the European Union (CFR), and the right to be effectively remedied pursuant to Article 13 of the ECHR and Article 47 of the Charter2 According to this approach, the right of access to justice

is the ability of the legal entities (mainly the individuals) in requiring the state to create the most favorable conditions to use the law and its aim is to protect the rights of themselves at state agencies when disputes or law violations handling occurs It is also “the right to obtain full information on the proceedings and the proceeding results of the case carried out by the competent state agencies The public listing of judicial procedures is a mandatory requirement for the Court headquarters; respecting and fully implementing the procedural rights of proceeding participants is an important requirement of the principle on the assurance of right of access to justice”3

In addition, the right of access to justice is understood as the right of the people to enjoy/use institutions in the legal system through which to seek justice of the parties in resolving disputes; accordingly, the state is obliged to provide legal services and institutions to ensure the equality of individuals and social groups in their enjoyment and use to redeem their fairness in disputes This is not only the right to access information in the judicial field and the right to participate in the proceedings of citizens, agencies and organizations, but the right of access to justice is also expressed through the people have the right to know and the right of access to legal assistance, legal education and propaganda The most important and inclusive issue of the right of access to justice is that this right as a human right is only achieved, exercised, and assured its fullest implementation in the rule of law state, the state in which the human rights are truly respected and protected by laws and institutions prescribed by law

1 Vu Cong Giao, “Right of access to justice and the role of the court in this right assurance” in Dao Tri Uc and Vu Cong

Giao, Justice and the right of access to justice (Hong Duc Publishing House, Hanoi, Vietnam 2018), p 107-108

2 European Agency for Fundamental Rights, European Court of Human Rights and Council Europe, Handbook on

European law relating to access to justice (2016) <https://www.echr.coe.int/Documents/Handbook_access_justice_ ENG.pdf> p 16 accessed 15 September 2019

3 Chu Thi Ngoc, “Ensuring the right of access to justice - a requirement in ensuring the human rights of the court”,

(5)

402 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS Therefore, from whatever perspective, the right of access to justice has the same core nature, which is fairness and justice on the basis of law in dealing with cases of violating laws and infringing upon the human rights and legitimate interests, especially in trial activities This right arises when the human rights and legitimate interests are violated; therefore, the assurance of right of access to justice is considered one of the important contents in the construction of a modern rule of law state It is the right of every citizen to ask the state to use all measures to ensure their legitimate rights and interests when disputes or infringements of their rights occur Correspondingly, the assurance of right of access to justice is the duty of each nation to improve the state and the law, so that the human rights and citizens’ rights are effectively guaranteed; this especially is “a requirement, which is both the goal of development and the guarantee of freedom and democracy of the rule of law”1

From the above concepts, the right of access to justice is understood as the human right,

expressing the needs and capabilities of the person requesting the state (especially investigation agency, judgement agency, judgment enforcement agency) to create the most favorable conditions to use the law, so as to access and seek appropriate remedies and compensation when a dispute arises or there is a violation of legitimate rights and interests.

The justice protection in general and the assurance of right of access to justice in particular are the duty of all entities in society, the first and foremost of which are the judicial organs, because “the nature of the judiciary is justice”2 Therefore, “the judicial system must really be a mainstay

for the people in the justice and human rights protection”3 Stemming from this philosophy, the

Constitution of the Socialist Republic of Vietnam 2013 had for the first time in the constitutional history in Vietnam stipulated that “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” (Clause 3, Article 102)4.

2.2 Pillars of right of access to justice

The right of access to justice is, first and foremost, the right to a timely and equitable trial by the courts, before the law and the Court Although many the subjects may jointly participate in the assurance of right of access to justice, the court plays the most important role in the process, because after all, the nature of access to justice is access to the court, i.e the access to the process and judicial procedures of the jurisdiction body Meanwhile, the court is also a government body, an important institution of the state, so it must be organized and operated according to good governance standards, including publicity, transparency and accountability The assurance of right of access to justice is both a goal of judicial activities and a condition to ensure the enhancement of judicial responsibility and its level of integrity5 Therefore, publicity and transparency is the top requirements in judicial activities

1 Chu Thi Ngoc, “Ensuring the right of access to justice - a requirement in ensuring the human rights of the court”,

Journal of Science, Vietnam National University, Hanoi: Jurisprudence (Hanoi, 1/2017 ), volume 33, p 25

2 Dao Tri Uc (2017), “The position and role of the court before the request to build and perfect the rule of law in

Vietnam”, Communist Review: Fundamental major, No 129, p 43

3 The Politburo’s Resolution No 49-NQ / TW dated June 2, 2005, on the Judicial Reform Strategy to 2020.

4 National Assembly of Vietnam, The Constitution of the Socialist Republic of Vietnam 2013 (National Political

Publishing House, Hanoi, 2014), p 55

5 Dao Tri Uc, “The main issues of judicial integrity in the process of building and perfecting the rule of the law in

(6)

403

to ensure that the people can access the court as well as access the justice Moreover, resolving cases in a timely manner without delay is both a result of and a premise for ensuring the right of access to justice The unreasonable lateness and delay often lead to the negative results, for example, the corruption in solving cases, and cause enormous damage to the rights of the parties As a result, resolving the case in a timely manner without delay also contributes to increasing public confidence in justice, legal protection and moral values in society In addition, the objectivity, candidness, and faithfulness, and the correct application of the law in the trial activities of the courts are factors relating closely to one another and are the key factors determining the effectiveness of the trial activities as well as the result of the right of access to justice1.

On that basis, the right of access to justice is implemented through the following aspects: the citizen’s right of access to law (the citizens fully understand their own rights and obligations and the responsibility of the state in protecting their rights); the right of access to legal aids; the citizen’s right to a fair trial; the right to demand and pursue the case to the end In particular, for the unrelated

people: must understand and know their rights and obligations and be protected by the State; For those involved in legal disputes: (1) the victims, the holders of rights violated by law violations: must

know their rights that are violated; clearly know the process, procedures for protection or assistance to reach the competent authorities, so that they can promptly settle and pursue the case to the end and be “reclaimed” to be right, compensated for the damage they have suffered ; (2) those who cause the law violations: must understand their rights and obligations; clearly know the process and procedures for resolving the case, the legal responsibilities they must perform and have their rights and interests protected Thus, the right of access to justice may include the following rights: the right to a fair, timely, and lawful trial; the right of access to legal information; the right to enjoy legal education; the right to enjoy legal advice and legal aid; and so on

These rights can only be exercised by an effective and integrity judicial system, so the right of access to justice is formed on the following pillars: (i) formal institutional system (National law) and informal institutional system (Customary laws) of recognizing and protecting the fundamental rights and freedom (system of rights and obligations of the citizen); (ii) formal institutional framework (courts, procuracies, investigation agencies, and the judgment enforcement agencies, etc.) and informal institutional framework (arbitration, conciliation, etc.) (the system of judicial organs), in which the most important is that the court must ensure the fulfillment of the following requirements: publicity, transparency, accountability; timeliness, without delay; independence, objectivity, impartiality and proper application of the law; (iii) the ability to demand and pursue a citizen’s case (the citizens’ ability

of access to justice), including the citizen’s legal awareness and the availability and effectiveness of

the legal aid and consulting system2

3 Right of access to justice in constitutions of some Asian countries

In fact, each Asian country has a different history of formation and development, leading to the variety in the legal systems, the judicial systems, so the right of access to justice is stipulated in the

Giao, Justice and the right of access to justice (Hong Duc Judicial Publishing House, Hanoi, Vietnam 2018), p 121 - 122

(7)

404 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS constitution of Asian countries under many different specific contents However, the core of this right is still the right of access to the court, as clearly stated in the Japanese Constitution “No person shall be denied the right of access to the courts.” (Article 32)

3.1 System of rights and obligations of the citizens

Legal protection including a system of rights and obligations of the citizens is the first foundation to ensure access to justice Only when the rights and obligations of the citizens are recognized and protected by law, can the individuals in society have the legal basis to request compensation / remedy for the injustices and damages they encounter That is also the reason why UNDP considers the system of rights and obligations of the citizens as a “legal protection” for the right of access to justice Constitutions in many Asian countries have a separate chapter defining the basic rights and obligations of the citizens, for instance: Chapter II of the Constitution of the People’s Republic of China stipulates the Fundamental Rights and Duties of Citizens (from Article 33 to Article 56), including the following specific provisions: The State respects and preserves human rights (Article 33)1; Chapter III of the Constitution of Japan stipulates the rights and duties of the people (from

Article 10 to Article 40), which clearly states, “The people shall not be prevented from enjoying any of the fundamental human rights These fundamental human rights guaranteed to the people by this Constitution shall be conferred upon the people of this and future generations as eternal and inviolable rights” (Article 11)2; Chapter II of the Constitution of the Republic of Korea also stipulates

the rights and duties of the citizens (from Article 10 to Article 39), thereby the Constitution states that “All citizens shall be assured of human dignity and worth and have the right to pursue happiness It shall be the duty of the State to confirm and guarantee the fundamental and inviolable human rights of individuals.” (Article 10)3

This fact shows that the core content of the Constitutions of Asian countries is the recognition and protection of human rights This is also the key constitutional thought in contemporary society because the human rights are of natural origin, but the human rights are not naturally guaranteed, the human rights are only guaranteed when these rights are recorded fully in the Constitution, laws, and guaranteed by the legal institutions Therefore, the system of rights and obligations of the citizens in the assurance of right of access to justice must conform to the provisions of national laws and international human rights treaties; which may be acknowledged in the customary laws and does not include provisions obstructing the access to justice of the citizens4.

3.2 System of judicial organs

In order to actualize the equitable solutions to the disputes provided for in the legal system, it is necessary for each country to have an institutional framework of access to justice This framework is created by a system of judicial organs and a system of supervisory agencies operating effectively

1 China (People’s Republic of)’s Constitution of 1982 with Amendments through 1998, 1999, 2004, 2018

<constituteproject.org> accessed 11 October 2019 p 11

2 Japan’s Constitution of 1946 <constituteproject.org> accessed 10 October 2019 p 5.

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

October 2019 p

4 Vu Cong Giao, “Access to justice and the principles of the rule of law”, Science Journal of Hanoi National University:

(8)

405

and independently An adequate and comprehensive framework of legal protection is necessary, but it will remain in theory without a system of institutions established to implement and ensure its proper implementation Therefore, according to UNDP, the system of judicial and supervisory agencies (or “institutional framework” as called by the UNDP) is the second foundation of the assurance of access to justice Each agency in each of the aforementioned systems has different functions and duties, therefore, plays a different role in the assurance of access to justice

Firstly, the system of judicial organs includes the courts, the procuracies, the investigation

agencies ; in which the Court plays a central role, as well as have an important responsibility in the assurance of the right of access to justice of the citizens through their judicial activities The constitutions of Asian countries all stipulate that the courts are the judicial organs, enforcement agencies of judicial rights

In Japan, the Constitution of this country stipulates, “The Supreme Court is vested with the rule-making power under which it determines the rules of procedure and of practice, and of matters relating to attorneys, the internal discipline of the courts and the administration of judicial affairs Public procurators shall be subject to the rule-making power of the Supreme Court The Supreme Court may delegate the power to make rules for inferior courts to such courts.” (Article 77) Currently, in this country, the court system has three levels: supreme court, high court, court of the first instance (including district court, family court and summary court); Eight high-level courts are located in eight major cities: Sapporo, Sendai, Tokyo, Nagoya, Osaka, Hiroshima, Takamatsu and Fukuoka; 50 district courts (in which, 47 provinces set up court each, except for Hokkaidō setting up courts in cities: Hakodate, Asahikawa and Kushiro (The whole Japan is divided into 47 administrative units (prefectures), each administrative unit has a district court, except for Hokkaidō Island where courts are established)), 50 family courts (located in the same location as the district courts)1) and 438 summary courts2

In China, the Constitution stipulates that “the People’s Courts of the PRC are the judicial organs of the state” (Article 123) and “The People’s Procuracy of the People’s Republic of China is the supervisory agency of the state” (Article 124)3 According to this provision, the Procuracy exercises

the right to prosecute, supervise the trial and oversee the law of the state The People’s Courts and the People’s Procuracy are judicial organs in China, in which the People’s Courts and the People’s Procuracy are characterized by four levels, including: the Supreme; high level in Beijing, Tianjin, Shanghai, Chongqing and autonomous regions (Xinjiang, Tibet); intermediate level and basic level The People’s Procuracy has the function of controlling and supervising the law enforcement (including the control and supervision of judicial activities of the Court), exercising the right to prosecute, conducting the investigation of certain criminal cases (mainly corruption cases) and other functions The People’s Procuracy has the right to appeal and request re-trial of cases in certain circumstances4

1 Staticstics Bureau under Ministry of Internal Affairs and Communications, Statistical Handbook of Japan 2018, p 191. 2 Jumpol Pinyosinwat, A Model for Specialized Intellectual Property Court in Developing Countries, A Thesis Submitted

in Partial Fulfillment of the Requirements for the Degree of Doctor of Laws, (Faculty of Law under Waseda University, 2010), p 26

3 China (People’s Republic of)’s Constitution of 1982 with Amendments through 1998, 1999, 2004, 2018

<constituteproject.org> accessed 11 October 2019 p 31

4 Vivienne Bath and Sarah Biddulph, “Report on organization and operation of the judicial system of People’s Republic

(9)

406 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS In the Republic of Korea, the Constitution states, “Judicial power is vested in courts composed of the judges The courts comprise the Supreme Court, which is the highest court of the State, and courts at specified levels.” (Article 101(1)(2))1 According to that regulation, the judicial system of the

Republic of Korea is composed of the Supreme Court, the Superior Court (in Seoul, Busan, Daegu, Gwangju and Daejeon), District Court, the Patent Court, Family Court and Administrative Court, in which, the Supreme Court, Superior Court, the District Court may exercise appellate jurisdiction over cases; the Family Court and Administrative Court have the same role as that of the District Court; the role of the Patent Court is the same as that of the Superior Court In addition, in the Republic of Korea, the Constitutional Court was established independently and under the Constitution and exists as an independent institution2

In many cases, the common laws are also used as a means of supporting the judicial organs In fact, in the Constitutions of Asian countries, the use of customary laws is not mentioned, so for many residential communities, especially the ethnic minorities, the customary laws always play an important role, even becoming the standard and tool for resolving disputes among members in the community In these areas, the customary laws are more easily accepted by the citizens when resolving disputes than by adopting a formal judicial system However, not all customary laws are in accordance with national and international laws, so when applying the customary laws, it is necessary to select and refine the customary laws complying with the principles and the general standards of the national and international laws, so as to resolve disputes in the community If used appropriately, the customary laws may provide strong support for the justice system

Secondly, the system of supervisory agencies includes internal supervision; supervision of

elected organs (National Assembly, parliament, etc), civil society organizations (agencies of mass communication, independent working groups, etc); in addition, it may include inspectors of the National Assembly, independent committees on anti-corruption, on the protection of human rights, etc The supervisory agencies are responsible for overseeing the operation of the formal and informal justice systems in order to ensure the correct and reliable functionings of these institutions

In the judicial models in Asia, there exists an internal supervision mechanism, which is the supervision of superior courts on inferior courts through the procedure of reviewing the inferior courts’ judgement (appellate, reopening or cassation court hearings and meetings) Although the Constitutions of Japan and South Korea not provide specific procedures for reviewing the inferior courts’ judgement, in practice, the proceedings of these countries still guarantee the right to review the judgments by the superior courts For instance, in Japan, the Supreme Court is the highest judicial organ, the last judicial level performing the function of reopening and cassation for judgments and decisions of the inferior courts The superior courts are intermediate courts, which have the jurisdiction to hear appeals and protests against the judgments and decisions of the inferior courts (the Tokyo superior court in particular has the exclusive jurisdiction of first instance trial for cases requiring the

October 2019 p 21

2 Byung – Sun Cho and Tom Ginsburg, “Report on organization and operation of the judicial system of the Republic of

(10)

407

cancellation of the decisions of administrative jurisdictions such as the Fair Trade Commission1)

First-instance court has the right of the first-instance trial for cases; specifically: the district court is the court with the general jurisdictions, can hear civil, criminal and administrative cases; the family court is a specialized court which is competent to accept and hear the cases related to marriage and family; the summary court is the court of limited jurisdiction that accepts and hears small civil cases (property dispute does not exceed 1,400,000 yen) and minor criminal offenses (appeal, protest against the civil sentences of this court which are held in the appellate hearings by the district court; appeal and protest against the criminal sentences of this court which are held in the appellate hearings by the superior Court2) In China, the Constitution of this country clearly states that “The Supreme People’s Court is

the highest judicial organ The Supreme People’s Court supervises the administration of justice by the people’s courts at various local levels and by the special people’s courts People’s courts at higher levels supervise the administration of justice by those at lower levels.” (Article 127)

In addition, the elected organs play a role as the citizens’ representative, elected by the citizens who have the responsibility to ensure the citizens’ right of access to justice through inspection, control, questioning or through the functionings of its affiliated committees Depending on the institution of power organization and decentralization in each country, The influence and role of elected organs to the judicial organs vary In China, the Constitution states that “The Supreme People’s Court is responsible to the National People’s Congress and its Standing Committee Local people’s courts at different levels are responsible to the organs of state power which created them.” (Article 128) and “The Supreme People’s Procuratorate is responsible to the National People’s Congress and its Standing Committee People’s procuratorates at various local levels are responsible to the organs of state power which created them and to the people’s procuratorates at higher levels.” (Article 133)3

In addition, the civil society organizations having a direct and widespread relationship with the masses play a leading role in overseeing the activities of the justice system The civil society organizations can identify and timely support the needs of the masses in terms of access to justice, detection of existential issues and mobilization for amending the issues related to the access to justice However, this system also has limitations; for example, a lack of a strict organizational structure, and the operation that is often not professional and easily influenced by political interests and powers In order to meet the requirements, the trial needs to be made public and transparent, as well as the court must ensure that the people and the media can attend the court hearing and the documents at the court must always be made available for the people to access (except for confidential documents not yet published in accordance with a procedure law), especially the judgments and other decisions, as well as administrative information related to the court4,

1 Luke Nottage, Makoto Ibusuki and David Johnson, “Report on organization and operation of the judicial system of

Japan” in UNDP and the Ministry of Justice, Research on the organization and operation of the judicial system in five selected countries (China, Indonesia, Japan, the Republic of Korea and the Russian Federation), (Judicial Publishing House, Hanoi, Vietnam 2011), p 324

2 Luke Nottage, Makoto Ibusuki and David Johnson, ,”Report on organization and operation of the judicial system of

Japan” in UNDP and the Ministry of Justice, Research on the organization and operation of the judicial system in five selected countries (China, Indonesia, Japan, the Republic of Korea and the Russian Federation), (Judicial Publishing House, Hanoi, Vietnam, 2011), p 324-325

3 China (People’s Republic of)’s Constitution of 1982 with Amendments through 2004 <constituteproject.org> accessed

13 October 2019, p 31 - 32

4 United Nations Office on Drugs and Crime, “Guide on Strengthening Judicial Integrity and Capacity” <https://www.

(11)

408 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS so according to the Constitution of the Republic of Korea, “Trials and decisions of the courts are open to the public However, when there is a danger that such trials may undermine the national security or disturb public safety and order, or be harmful to public morals, trials may be closed to the public by court decision (Article 109)”1 or the Constitution of Japan also clearly states: Trials shall be conducted and judgment be

declared publicly Where a court unanimously determines publicity to be detrimental to public order or morals, a trial may be conducted privately (Article 82)2.

However, the civil society organizations have the right to oversee the activities of the judicial system, provided that they must ensure the independence of judicial activities Therefore, the constitution law of People’s Republic of China states that: “The people’s courts exercise judicial power independently, in accordance with the provisions of law, and not subject to interference by any administrative organ, public organization or individual” (Article 126) 3, or the Constitution of the Republic of Korea

provides that “Judges shall rule independently according to their conscience and in conformity with the Constitution and Act” (Article 103)4.

3.3 Citizens’ accessibility to justice

While an adequate legal framework system and appropriate institutions in the access to justice are the necessary condition, the legal understanding of the masses and the effectiveness, as well as the availability of the legal aid and consultation system (or collectively, the access capacity to justice of the citizens) are the sufficient condition for the access to justice These are considered the third foundation in the access to justice, including the following main contents:

Firstly, the legal understanding: the legal understanding of the masses plays a greatly important

role in the access to justice If a person does not have an understanding of the rights and mechanisms to protect his/her rights, s/he may never have ideas and actions concerning the access to justice Therefore, it is highly important to provide and disseminate fully, timely and accurately the legal information to the people This is not only the responsibility of the state but also the responsibility of social organizations

The realities in Asian countries show that, although the Constitution does not specify the mechanism for providing and disseminating fully, timely, accurately legal information to the people, it is actually through specific activities of state agencies that the law dissemination, propaganda and education activities are brought to the people, such as through public trial activities (the people shall understand moreclearly the law provisions, and accordingly shall understand clearly their rights and obligations, as well as what they can and cannot do); activities of providing legal information on the mass media or through the legal aid and consulting activities; etc

October 2019, p 22

2 Japan’s Constitution of 1946 <constituteproject.org> accessed 10 October 2019, p 31.

3 China (People’s Republic of)’s Constitution of 1982 with Amendments through 2004 <constituteproject.org> accessed

13 October 2019, p 31 - 32

(12)

409

Secondly, the legal aid and consulting system: helping the masses to understand the laws and

support, advice in the pursuit of justice is a great work for the people, especially those who have difficulty in access to the judicial system

The legal aid and consulting system play an important role in modern justice; therefore, in many countries, the legal aid and consulting system have been strongly developed In Asian countries, their constitutions are also very clear, for example, in China: “The accused has the right of defence” (Article 125) and “Citizens of all nationalities have the right to use the spoken and written languages of their own nationalities in court proceedings The people’s courts and people’s procuratorates should provide translation for any party to the court proceedings who is not familiar with the spoken or written languages in common use in the locality In an area where people of a minority nationality live in a compact community or where a number of nationalities live together, hearings should be conducted in the language or languages in common use in the locality; indictments, judgement, notices, and other documents should be written, according to actual needs, in the language or languages in common use in the locality.” (Article 134); or in Japan, the Constitution states, “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)

Through the legal aid and consulting system, the people are provided with legal services (usually free of charge) to update information and legal knowledge as well as receive advice and suggestions, so that they can find appropriate solutions in the process of seeking compensation/remedy when their legal rights and interests are violated

4 Lessons for Vietnam

Vietnam’s civil and criminal justice index has improved over the years; however, when compared to that of many countries in the region and around the world, such a degree of improvement is not sufficient and not remarkable This has not advanced Vietnam’s position in the justice access index compared to other countries in the region and the world (Chart 1).

Chart 1: Access to Justice Index of some Asian countries in the period of 2017-2018

Source: The World Justice Project1

1 Mark David Agrast, Juan Carlos Botero and Alejandro Ponce, Rule of Law Index 2017 -2018 (The World Justice

(13)

410 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS From the practice of recognizing the right of access to justice in the Constitution of the People’s Republic of China, Japan and the Republic of Korea, we must focus on well addressing the following contents to ensure the right to access to justice in Vietnam at present:

Firstly, Vietnam must concretize the human rights, rights and obligations of the citizens as

stipulated in the 2013 Constitution into the specific legal provisions and specific policies, in which, everything must be for the sake of the human being, and the human being must be put at the center of every policy and be considered as both a driving force and a goal of development This does not only affect the economy and society but also strongly governs the awareness and reality of human rights assurance in Vietnam at present

Secondly, Vietnam must speed up the reform of procedural procedures, overcome people’s

doubt of the fairness of judges and court officials as well as the high attorney fees; it is necessary to create a good impression and confidence among the people in the integrity of the courts as an agency that protects justice and protects human rights Along with that, it is required to well implement the disclosure of the courts’ legally effective judgment or decision; strengthen the supervision of agencies, organizations and individuals over the Court’s judicial activities In each judgment, the legislation has been concretized and applied by the Court in resolving each issue of the case, thereby improving the people’s capacity of access to justice

Thirdly, it is necessary to build and expand a network of agencies, services on legal aid and

consultation; vigorously develop a team of lawyers; at the same time, enhance the accessibility to lawyers, agencies, organizations and other individuals with legal aid capacity In addition to the lawyers, other agencies, organizations and individuals with the legal aid capacity must provide information on legal provisions, legal proceedings and other relevant information disseminated accurately, timely, and fully by the media, becoming the most effective communication channel through which the people can access the law and improve intellection This shall thereby create fundamental changes in the sense of respect and law abidance; at the same time, the people also know more about the criminal situation, new crime tactics in order to raise their sense of vigilance, protect themselves, and prevent crime

Fourthly, it is required to promote the role of elected organs and news agencies in supervising

the guarantee of citizens’ right to justice The elected organs play a role as the citizens’ representative, elected by the citizens and having the responsibility to ensure the citizens’ right of access to justice through inspection, control, questioning or through the functionings of its affiliated committees In addition, the news agencies must actively contribute to the inspection and supervision of public authorities’ activities, including the court system For most people, their primary link to justice is through the news of the mass media Therefore, although the media is not the only means, it plays an important role, and is the main source of news and comments that exert the greatest impact on different classes of people

5 Conclusion

(14)

411

to the development of a rule-of-law, modern and prosperous society Asia is one of the most eventful and potential areas for development in the world The miraculous development of Japan, the Republic of Korea and the People’s Republic of China in recent decades is a clear evidence of their strong and effective reforms As a result, these countries have significantly improved many aspects of their social life, from improving the institutions to improving national governance capacity and ensuring the right of access to justice of the citizens

These achievements of these countries have become valuable lessons and inspirations for many developing countries including Vietnam, especially in considering the assurance of the right of access to justice of the citizens an important factor in upgrading the national democratic governance capacity to a new level./

References

China (People’s Republic of)’s Constitution of 1982 with Amendments through 2004 <constituteproject.

org> accessed 11 October 2019

Byung – Sun Cho and Tom Ginsburg, “Report on organization and operation of the judicial system of the Republic of Korea” in UNDP and the Ministry of Justice, Research on the organization and

operation of the judicial system in five selected countries (China, Indonesia, Japan, the Republic of Korea and the Russian Federation), (Judicial Publishing House, Hanoi, Vietnam, 2011).

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> p 22, accessed 11 October 2019

European Agency for Fundamental Rights, European Court of Human Rights and Council Europe,

Handbook on European law relating to access to justice (2016) <https://www.echr.coe.int/

Documents/Handbook_access_justice_ENG.pdf> p 16 accessed 15 Semptember 2019 Deborah L Rhode, Access to Justice (Oxford University Press, 2004).

Vu Cong Giao, “Access to justice and the principles of the rule of law”, Science Journal of Hanoi

National University: Jurisprudence (Hanoi, 2009), volume 25 (2009).

Vu Cong Giao, “Right of access to justice and the role of the court in this right assurance” in Dao Tri Uc and Vu Cong Giao, Justice and the right of access to justice (Hong Duc Pubishing House, Hanoi, Vietnam 2018).

Gudmundur Alfredsson & Asjørn Eide, The Universal Declaration of Human Rights, 1948: A common

goal of humanity (translated by Nguyen Dang Dung, Vu Cong Giao and La Khanh Tung, first

edition, Thanh Nien Publishing House, Hanoi, Vietnam 2017)

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

Human Rights Committee, Views of 23 July 2007, Dudko v Australia, Communication No 1347/2005 Human Rights Committee, Views of April 2003, Weiss v Austria, Communication No 1086/2002

(15)

412 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS International Commission of Jurists, Judicial Monitoring Manual on Criminal Procedure: Manual

for Practical Introduction No ( translated by Pham Doan Trang)

https://www.icj.org/wp-content/uploads/2017/10/Universal-Trial-Observation-Publications-Reports-Practitioners-guide-2015-VIET.pdf p 44, accessed 29 September 2019

International Covenant on Civil and Political Rights 1966 <https://treaties.un.org/doc/publication/ unts/volume%20999/volume-999-i-14668-english.pdf> accessed 01 October 2019

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

School of Law, Vietnam National University, Hanoi, Introduction to the International Covenant on

Civil and Political Rights (ICCPR, 1966) (Hong Duc Publishing House, Hanoi 2012).

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

Mark David Agrast, Juan Carlos Botero and Alejandro Ponce, Rule of Law Index 2011 (The World Justice Project 2011)

Mark David Agrast, Juan Carlos Botero and Alejandro Ponce, Rule of Law Index 2012-2013 (The World Justice Project 2013).

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

Mark David Agrast, Juan Carlos Botero and Alejandro Ponce, Rule of Law Index 2015 (The World Justice Project 2015)

Mark David Agrast, Juan Carlos Botero and Alejandro Ponce, Rule of Law Index 2017-2018 (The World Justice Project 2018).

National Assembly of Vietnam, The Constitution of the Socialist Republic of Vietnam 2013 (National Political Publishing House, Hanoi, Vietnam 2014)

Chu Thi Ngoc, “Ensuring the right of access to justice - a requirement in ensuring the human rights of the court”, Journal of Science, Vietnam National University, Hanoi: Jurisprudence (Hanoi,

1/2017 ), volume 33.

Luke Nottage, Makoto Ibusuki and David Johnson, “Report on organization and operation of the judicial system of Japan” in UNDP and the Ministry of Justice, Research on the organization and

operation of the judicial system in five selected countries (China, Indonesia, Japan, the Republic of Korea and the Russian Federation), (Judicial Publishing House, Hanoi, Vietnam 2011)

The World Bank Group and Ministry of Planning and Investment of Vietnam, Vietnam Report 2035:

(16)

413

Jumpol Pinyosinwat, A Model for Specialized Intellectual Property Court in Developing Countries, A Thesis Submitted in Partial Fulfillment of the Requirements for the Degree of Doctor of Laws, (Faculty of Law under Waseda University, 2010)

Resolution on the Right to a Fair Trial and Legal Assistance in Africa - The Dakar Declaration and Resolution <http://defensewiki.ibj.org/index.php/Resolution_on_the_Right_to_a_Fair_Trial_ and_Legal_Assistance_in_Africa_-_The_Dakar_Declaration_and_Resolution> accessed 14 October 2019

Staticstics Bureau under Ministry of Internal Affairs and Communications, Statistical Handbook of

Japan 2018.

The Magna Carta (The Great Charter) <https://www.constitution.org/eng/magnacar.pdf> accessed October 2019

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.

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).

Dao Tri Uc, Textbook of the rule of law state (Vietnam National University Press, Hanoi, 2015). Dao Tri Uc (2017), “The position and role of the court before the request to build and perfect the rule

of law in Vietnam”, Communist Review: Fundamental major, No 129.

UNDP, Access to Justice: Practice Note <https://www.undp.org/content/dam/aplaws/publication/ en/publications/democratic-governance/dg-publications-for-website/access-to-justice-practice-note/Justice_PN_En.pdf> accessed October 2019

UNDP, Programming for Justice: Access for All A Practitioner’s - Guide to a Human

Rights-Based Approach to Access to Justice, (UNDP Regional Centre in Bangkok, 2005), accessed 15

Semptember 2019

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

Universal Declaration of Human Rights <https://www.ohchr.org/en/udhr/documents/udhr_

translations/eng.pdf> accessed October 2019

Vivienne Bath and Sarah Biddulph, “Report on the organization and operation of the judicial system of the People’s Republic of China” in UNDP and the Ministry of Justice, Research on the

organization and operation of the judicial system in five selected countries (China, Indonesia, Japan, the Republic of Korea and the Russian Federation), (Judicial Publishing House, Hanoi,

Vietnam, 2011)

(17)

Thank you for evaluating AnyBizSoft PDF Splitter. A watermark is added at the end of each output PDF file

To remove the watermark, you need to purchase the software from

The right of Access to justice in constitutions of some Asian countries and lessons learned for Vietnam

Thông tin tài liệu

Từ khóa liên quan

Tài liệu cùng người dùng

Tài liệu liên quan