Independence and Responsibility Mechanism of Judges in Vietnamese and English Law

Joint Swedish-Vietnamese
Master’s Programme

MASTER’S THESIS

T RAN N GOC H A

Independence and Responsibility
Mechanism of Judges in Vietnamese and
English Law

SUPERVISORS:

Ass.Prof.Dr. Mai Hồng Quỳ
Prof. Michael Bogdan


Acknowledgements
First of all, I would like to thank my family, especially my husband, for their
emotional share and care of my little daughter during the time of this course. I cannot
pursue the course until present without my family’s encouragement.
I would like to express my deepest gratitude to my supervisors, Assistant
Professor Mai Hong Quy and Professor Michael Bogdan for their sympathy on my
private difficulties and for their valuable directions on my thesis. Assistant Professor
Mai Hong Quy has supported me a lot in deciding the topic of thesis. Professor
Michael Bogdan gave me useful advices during the time in Lund and during the time
of writing this thesis. I also have learnt a lot from his way of working and teaching.
My gratitude also goes to the other Vietnamese, Swedish, and American
professors, particularly Assistant Professor Christopher Wong, who devotedly
provided us with professional knowledge and research methodology during their
lectures in Vietnam and Sweden. My thanks also go to Sida for funding the Joint

Master’s Program that I attended.
I am sincerely grateful to friends and colleagues who provide me with kind help
through out the time I was doing this research. I thank Assistant Professor Truong
Dac Linh for his devoted suggestions for my thesis. I thank Doctor Do Van Dai for
his support with concerned materials. Last but not least, I grateful to my colleagues
at the International Law Faculty, who shared my work during the time of this course.
My supervisors gave the best directions. Therefore, if there are some mistakes in
this thesis, they totally belong my own responsibility. Needless to say, in spite of
these acknowledgement, I bear personal responsibility for ideas and arguments
presented in this thesis.

1


Table of Content

Acknowledgements......................................................................................................1
Table of Content...........................................................................................................2
Abbreviations...............................................................................................................4
Executive Summary....................................................................................................5
1. Introduction.............................................................................................................6
1.2 Rationale.................................................................................................................6
1.3 Purposes...............................................................................................................6
1.4 Delimitation.........................................................................................................6
1.5 Research methods and Materials.........................................................................6
1.6 Disposition...........................................................................................................8
2. Independence of judges..........................................................................................8
2.1. Concept of independence of judges ...................................................................8
2.1.1 Independence and impartiality of judges..........................................................11
2.1.2 Independence of judges – individual independence and independence of the

whole judiciary system – institutional independence................................................13
2.2. International legal provisions on independence of judges..................................14
2.2.1 LAWASIA’s Principles on Judicial independence............................................14
2.2.2 The International Bar Association’s Code of Minimum Standards of Judicial
Independence.............................................................................................................16
2.2.3 Universal Declaration on the Independence of Justice.....................................17
2.2.4 United Nations’ Basic Principles on the Independence of the Judiciary..........17
2.2.5 The Universal Charter of the Judges.................................................................18
2.3. Individual independence of English judges........................................................18
2.3.1 Categories of judges..........................................................................................19
2.3.2 Security of tenure..............................................................................................20
2.3.3 High salaries......................................................................................................21
2.3.4 Transparent appointment...................................................................................22
2.4. Vietnamese legal provisions on principles of the independence of judges.........23
2.4.1 Provisions on independence of judges in the legal documents issued before the
1992 Constitution.......................................................................................................23
2.4.2 The substance of the concept of judges’ independence under current law.......25
2.5. Independence of Vietnamese judges in reality....................................................26
2.5.1 General remarks on the independence of Vietnamese judges...........................26
2.5.2 Threats to independence of Vietnamese judges................................................28
3. Responsibility mechanism of judges.....................................................................34
2


3.1. Overview of responsibility mechanism for judges.............................................34
3.1.1 Concept of responsibility mechanism for judges..............................................34
3.1.2 The tension between responsibility and independence of judges.....................35
3.1.3 State’s responsibility and judges’ responsibility...............................................37
3.2. International legal provisions on responsibility of judges..................................38
3.3. Responsibility of English judges........................................................................39

3.3.1 Overview of responsibility mechanism of English Judges...............................39
3.3.1 Judges’ professional discipline.........................................................................42
3.3.3 Judicial immunity..............................................................................................43
3.4. Practice of responsibility mechanism for Vietnamese judges ............................44
3.4.1 General remarks on responsibility mechanism for Vietnamese judges at the
moment .....................................................................................................................44
3.4.2 Problems of responsibility mechanism for Vietnamese judges........................46
4. Conclusion.............................................................................................................53
Table of Statutes and Other Legal Instrument...........................................................54
Bibliography..............................................................................................................56


Abbreviations

CA 1971
CRA 2005
IBA
JAC
JACO
LAWASIA
SCA 1981
SPC
UN

Court Act 1971
Constitutional Reform Act 2005
International Bar Association
Judicial Appointments Committee
Judicial Appointments and Conduct Ombudsman
The Law Association for Asia and the Western Pacific

Supreme Court Act 1981
Supreme People’s Court
United Nations

4


Executive Summary
Improving the quality of judicial activities is a very important duty of the Vietnamese
judiciary in the coming time under the light of Resolution No.49 and Resolution
No.08 of Political Bureau about the judicial reform strategy. Judges plays the
decisive role to achieve that purpose because the quality of the judicial activites is
assessed on the ground of final outcomes of cases. However, the current practice
shows that independence of Vietnamese judges is violated seriously by manifold
threats from outside and eventually from the judiciary. Judges’ working conditions
are not guaranteed adequately by law. The salaries of judges cannot afford their daily
life, the security of tenure is not ensured since it is too short and judges are pressed
by the reappointment mechanism. Besides, the judicial ability of judges is a big
problem in present, and this is one of reasons leading to the dependence of judges to
their leaders/superiors. Additionally, responsibility mechanism for Vietnamses judges
contains so many unreasonable problems, especially the disciplinary procedures with
two kinds of discipline, professional discipline and civil servant discipline, and the
personal remedial responsibility. With current responsibility mechanism, judges face
a lot of threats which are harmful to their independence. Therefore, ensuring
independence of judges and setting up a reasonalble accountability mechanism for
them are urgent duties of the judiciary to make the positive changes for the judicial
reform. In order to achieve the effective results, it is very useful for Vietnam to learn
from the international legal provisions about judge’s independence and responsibility
as well as the experience from countries which have the judiciary with high
independence. Experiences of the English judiciary are very useful for Vietnamese

judicial reform, particularly in protecting independence of individual judges.

5


1.

Introduction

1.1

Rationale

According to the content of the Resolution No. 49 on 2 nd June 2005 of the
Political Bureau about judicial reform, improving the quality of judiciary activities is
the main aim of judicial reform strategy. Judges play a very important role to achieve
this aim because the independence of judges is a decisive factor to have objective
and just judgments. The principle “during a trial, the judges are independent and
shall only obey the law” is a constitutional provision since 1946. However, in present
the independence of judges is a topical matter in Vietnam since there are so many
cases proving that the independence of judges are not ensured in judicial activities.
The lack of independence of judges has affected the quality of trial so much, and as a
result, it causes many bad consequences to society, especially belief of people to
justice. According to the Annual Report of the Supreme People’s Court in 2007, there
are 35 judges disciplined and prosecuted criminal liability. This situation is caused by
many reasons both from legal provisions and the judges themselves, for example, the
appointment of judges, the low salaries, the organization of court system, the
relationship between judges and their superiors…So, ensuring the independence of
judges has become very necessary matter to improve the quality of judicial activities.
One of the factors, which cannot be separated from the independence of judges, is

responsibilities mechanism of judges, and this is considered indispensible corollary
of the independence. Judges must be independence, but it does not mean that they
can do anything and have no responsibility. Responsibility mechanism is very
important to make judges independent. However, from another perspective, if judges’
responsibilities are not provided suitably, it will affect badly to judges’ judgments. As
a result, it is essential to balance the independence and responsibilities of judges.
Vietnamese law has also provided on judges’ responsibilities, but the provisions are
not effective in fact and there are a lot of gaps in this field. Basing on the reality
mentioned above, I decide to choose the matter of independence and responsibility
mechanism of judges for my master thesis.

6


Introduction

1.2

Purposes

This thesis has the following purposes: The first purpose is examining main
theoretical aspects of independence of judges and their responsibility mechanism.
With this purpose, the thesis is expected to examine the notion of independence and
responsibility mechanism of judges, and the relations of these issues with concerned
matters such as impartiality of judges, institutional independence, the relation
between independence and responsibility, and relation between individual
accountability and State‘s responsibility, ect. The second purpose is defining and
analyzing threats to independence of Vietnamese judges and problems in their
accountability

mechanism.

In

addition,

the

last

purpose

is

suggesting

recommendations for guaranteeing the independence of Vietnamese judges as well as
building a reasonable responsibility mechanism for them based on selective reference
from the international instruments and English law.

1.3

Delimitation

By setting the above purposes, the thesis will research on legal provisions of
independence and accountability of judges in international instruments, English law,
and Vietnamese law. The thesis focuses on the analyzing the critical practice of
Vietnamese judges’ independence and responsibility as well as concerned provisions.
International provisions and English law are considered reference sources to
recommend solutions for Vietnamese judges.

Within the delimitation of master thesis, it is impossible to study all problems
relating to independence and responsibility of Vietnamese judges. The following
basic elements impacting judges’ independence will be researched: term of office,
salary, appointment mechanism, qualifications, discipline, and personal remedial
responsibility.

1.4

Research methods and Materials

In this thesis, the three major research methods are used: the analytical, the
comparative, and the descriptive.
The three methods are used in each chapter. The analytical is used to deal with
theoretical matters of independence and responsibility of judges, and to examine
negative problems both in law and in practice harmful to Vietnamese judges’
independence. The descriptive method is used to study on international instruments
and provisions of English law. The comparative method is used to compare the


Short title of the thesis
principles guaranteeing the individual independence developed in numerous
international instruments, and to make comparison between Vietnamese law and
English as well as international provisions in order to find out reasonable
recommendations for Vietnam.
Various material sources are used in this thesis consisting of international
instruments, national statutes, books, monographs, and articles from law journals,
and materials from the internet.

1.5

Disposition

In accordance with the purposes, the thesis are structured as follows:
Introduction includes these issues: Rationale, Purposes, Delimitation, Research
methods and Materials, Disposition.
Chapter 1“Independence of judges” will research theoretical matters of individual
independence of judges including its notion, relations with impartiality and
institutional independence. This chapter also give the readers knowledge of
concerning international instrument and English law on ensuring independence of
judges. The central part of this chapter is research on independence of Vietnamese
judges.
Chapter 2 “Responsibility Mechanism of Judges” focuses on the responsibility of
judges as an important factor supporting the independence of judges. This chapter
will also examine theoretical aspects of responsibility, international and English legal
provisions on this matter, and analyzing problems of responsibility mechanism of
Vietnamese judges in present.

2.

Independence of judges

2.1

Concept of independence of judges

Independence of judges is important in every area of the law. For just and effective
judgments, judges must be independent. It is impossible to have an independent
judiciary without independent judges. The importance of judges’ independence is
realized by all nations, all states since it is the key factor making a strong judiciary,
building a democratic society and protecting human rights. Being the guardian of

justice - an elevated but dangerous duty - judges always face many threats. Threats to
the individual judges are diversity. They are also very dangerous because they target
directly at the individual judges, who exercise judicial function and therefore are

8


Introduction
greatly potential of perverting justice. The executive, an executive’s or judicial
officer may have the power to raise or to reduce the judge’s salary, to discipline judge
or to transfer judge to another court. The chief judge in a court may have the power
to assign cases to judges. Beside the influence may from the other state institutions
and superiors, judges may also put themselves in danger of threat from the criminal
network. Impact from the press and other social and political forces may also be
interference with making decision process of judges. 1 All of these powers may be
exerted to affect the course of action of a targeted judge when deciding on a case. In
order to be impartial to give out just judgments, judges must not be affected by those
threats. An independent judge, therefore, cannot be affected by any threat in making
decision. Independence of judge has been mentioned in a lot of documents in various
ways.
Independence of individual judges are stated strongly in the Universal Declaration
on the Independence of Justice 1983 that judges “shall be free to decide matters
before them impartially, in accordance with their assessment of the facts and their
understanding of the law without any restrictions, influences, inducements, pressures,
threats or interference, direct or indirect, from any quarter or for any reason. In the
decision-making process, judges shall be independent vis-à-vis their judicial
colleagues and superiors”2
In the Universal Charter of the Judge 1999, independence of judge is approached
by pointing out from what and who judge must be free. “The judge, as holder of
judicial office, must be able to exercise judicial powers free from social, economic

and political pressure and independently from other judges and the administrative of
the judiciary”.3Consequently, negative external interference in judge’s professional
activities may from not only the judicial system but also their colleagues, superiors,
and administrators.
Another understanding of judge’s independence is mentioned in the Bangalore
Principles of Judicial Conduct in 2002. A judge shall exercise the judicial function
independently on the basis of the judge’s assessment of the facts and in accordance
with a conscientious understanding of the law, free of any extraneous influences,
inducements, pressures, threats or interference, direct or indirect, from any quarter or
for any reason.4It is recommended clearly that judge must be free from social
1

USAID, Office of Democracy and Governance, Guidance for promoting Judicial
Independence and Impartiality- Revised Edition, (2002), available at
< />>p.5.
2

Universal Declaration on the Independence of Justice, II,2.02-2.03

3

The Universal Charter of the Judge, Art.2

4

Bangalore Principles of Judicial Conduct 2002, 1.1


Short title of the thesis
influence, the particular parties to a dispute, which a judge has to adjudicate 5,

influence by the executive and legislative branches of government, and from other
judicial colleagues6.
A little bit different from the access to independence of judge of the two
international documents above, in the book “Judicial Independence – The
contemporary debate” by Shimon Shetreet and Jules Deschênes, independence of
judge is categorized into individual independence and substantive independence.
Independence means both personal independence and substantive
independence. Personal independence of judges means that they enjoy such
terms of service that render them free from executive control that could be
exercised through removal, suspension, non consensual transfer from
locality or one office to another, salary cuts or administrative retirement…
The substantive independence of judges means that in the discharge of
official functions, the judge is subject to no one and nothing but the law and
his conscience.7
Under this division of independence of judge, influences from executive
administration are emphasized while the fact that independence of judges is
threatened by various external interference not the executive control only.
Substantive independence of judge, actually, should be understood the impartiality of
judges which will be mentioned in the next part.
Despite of the difference of words, all the understanding about independence of
judges presented has the same nature showing from which and who judges should be
free. The interference on judge’s independence, generally, can be divided into two
resources: internal and external forces. External forces means the interference outside
of the judicial system such as the social and economic influence, political parties, the
press, litigants or any other forces outside of the judiciary itself that can encroach on
the autonomy of the individual judge 8…Internal forces means the influences inside
the judicial system such as those from the other judges or superiors. “Independence”
means not be influenced, impacted by anyone or anything, and independent person is
the one carrying out his business on his own without any interference or affection.
Therefore, whatever the interference, internal or external forces, duty of judges is

making decision in accordance with the facts and laws.
5

Bangalore Principles of Judicial Conduct 2002,1.3

6

Bangalore Principle of Judicial Conduct 2002,1.4

7

Shimon Shetreet, Jules Deschênes, “Judicial independence: The Contemporary Debate”,
Martinus Nijhoff Publisher, 1985, pp.172-173
8

Petter., Russell, and David M., O’Brien (eds), “Judicial Independence in The Age of
Democracy”, University Press of Virginia, Virginia 2001, p.11.

10


Introduction
In short, independence of judges can be defined briefly that judges must be free
from the undue influences causing negative pressures upon their judgments from
anyone, any institution, or any impact else inside or outside the judiciary system.
It also should be alleged that independence does not completely prevent judges
from using positive external information in settling the cases, for example, judges
may share the facts of the cases and discuss specific relevant legal issues with
colleagues, including senior judges, but this consultation process must be regarded as
advisory and never as authoritarian instruction. 9Judges always suffer a lot of

pressures in conducting their judicial function because there are so many interference
and manifold resources of information relating to the cases. It is really a challenge
for judge to secure his independence and consider the useful information supporting
for the making just decision legally. Consistency and firm professional skills are
unnecessary elements helping judges to choose the right way.
Respect independence of judges is responsibility of any institution and anybody.
Being free from all of interference is duty and professional ethnic of judges;
however, without the respect from the others, it is so difficult for judges to keep
themselves independent in order to protect justice. Therefore, co-operation of the
other institutions, community, and any external factors having potential influence on
judge’s independence is very essential to make judges more independent.

2.1.1

Independence and impartiality of judges

It is the fact that the term “independence” and “impartiality” is often mentioned
together. Without careful studying, it is easy to confuse the two concepts and equate
independence to impartiality. Impartiality is not less important than independence
since it is a compulsory requirement of a judgment. The independent status accorded
to a judge carries the assumption that the judge is impartial. Without the impartiality,
independence of judge would be a disaster for the parties involved in the case and
destroy the rule of law.
The meaning of impartiality is close to independence. Nevertheless, it must be
noted that independence and impartiality of judge are two distinct concepts.
Impartiality requires that in the discharge of his judicial duty a judge is answerable to
the law and his conscience only10. A judge has a duty to impartially assess the facts of
the case before him and apply the relevant law without any improper influence from
any source. Dr. L.M.Singhvi in his report to the United Nations has defined the
impartiality as “a freedom from bias, prejudice and partisanship, and it means not

9

Luu Tien Dung, “Judicial independence in transitional countries”, People’s Court Magazine,
Vol 20 (10/2006), p.9.
10

International Bar Association Code of Minimum Standards of Judicial Independence, 1(c)


Short title of the thesis
objectivity and an absence of affection or ill-will. To be impartial as a judge is to
hold the scales even and to adjudicate without fear or favour in order to do right.” 11
The concept of impartiality is distinct from but interrelated with the concept of
independence. The concept of independence relates to the duty of outsiders not to
interfere with the judges, while the concept of impartiality is the internal duty of the
judge not to be influenced by any source. The impartiality must be maintained during
the whole process of adjudication. It should not be limited only to the decision of the
judge, since an impartial process outcome would hardly be achieved without an
impartial process of adjudication. A judge has to make sure that his conduct is
perceived by the litigants of the case and any others as impartial. He must avoid any
circumstance that would lead to the undermining of his impartiality or would make
the public perceive that he might not be impartial. The Bangalore Principles have
listed a number of situations when a judge should withdraw from the case to protect
the impartiality requirement, such as (i) when he has actual bias or prejudice
concerning a party or personal knowledge of disputes on evidential facts concerning
the proceedings; (ii) when he previously served as a lawyer or was a material witness
in the matter in controversy; (iii) when he or a member of his family has a economic
interest in the outcome of the case.12
From the legal perspective, it is an objective and also a duty of judges to
administer the law impartially no matter who are involved in cases before

them.13However, it should be realized that, in many cases judges act partially not
because they want to do so, but since they might have suffered unexpected external
interference, and in such cases it is not entirely their faults for the unfairness. It could
be seen at this point that, the issues of independence and impartiality of judges are
closely interrelated. Independence is the necessary condition for judges to get
impartiality in discharge of their judicial function. In other words, impartiality is an
objective of trial process while independence is a means to achieve that objective. A
judge can be independent but not impartial, but it is impossible for judges to be
impartial without independence.

11

Report of Special Rapporteur
E/CN.4/Sub.2/1995/18/Add.1.1
12

on

independence

of

judges

and

lawyers,

Bangalore Principles of Judicial Conduct 2002, 2.5.

13

The United nations Universal Declaration of Human Rights, Section 2.01; The European
Convention for the Protection of Human Rights and Fundamental Freedom, Article 6 para. 1.

12


Introduction

2.1.2

Independence of judges – individual independence and
independence of the whole judiciary system –
institutional independence

Judicial independence is generally used to imply independence of both the institution
of the judiciary and individual judges. This means that judicial independence
includes two parts: independence of an individual judge as well as that of the
judiciary as a branch of government, 14and there is an interrelation between them.
The judiciary system, as a whole, is the system of state institutions which have
function of adjudication; while the judge – officer of this institutional system - is the
one carrying out that function in fact. Independence of judges is independence of
specific individual, and institutional independence is collective independence.
Institutional independence means that the judiciary, as an institution, must be
protected adequately from those who may avail themselves of their leverage over the
former to intervene their business.15Institutional independence may suffer the
negative influences from the other state branches: the legislature and the executive.
From the institutional organization perspective, court system, or judicial institution,
is one of the state organs. As a result, it is impossible to have no relations with the

other state institutions.16The interference from the executive branch, for example, can
be supervision and control over judicial staff such as court clerks, bailiffs, and
administrative officers; the preparation and disbursement of courts’ budgets; of the
maintenance of courts’ buildings, ect. Judicial intervention from the legislative
differs from that of executive. In some countries, the legislative has the power to
form new court or to appoint judges, 17or to approve the judiciary’s budget
bill.18Apparently, these powers will have certain leverage over the judiciary’s
business and interfere with the independence of the judiciary.
14

American Bar Association, An Independence Judiciary: Report of the Commission on
Seperation of Powers and Judicial Independence, Chicago (1997), pp.ii-iii.
15

Burbank, Stephen B.,“The Architecture of Judicial Independence”, 72 S.Cal.L.Rev. (19981999)315, pp.340-349
16

Comment by Assisstant professor. Doctor Ha Thi Mai Hien (Institution of State and Law) at
the Seminar “Independence of Adjudication in Vietnam”, held in HoChiMinh City, 28-29 August
2008.
17

Comment by Assisstant Professor. Doctor Ha Thi Mai Hien (from Institution of State and
Law) at the Seminar “Independence of Adjudication in Vietnam”, held in HoChiMinh City, 28-29
August 2008.
18

To Van Hoa, “Judicial Independence: A Legal Research on Its Theoretical Aspects,
Practices from Germany, The United States of America, France, Vietnam, and Recommendations
for Vietnam”, Jurisforlaget i Lund, Lund 2006, p.67.

Short title of the thesis
The objective of interference with the individual independence is different from
that of collective independence. Threats target at specific person – individual judge
to make influence on their decision-making. Their superiors, press, criminal forces,
and even the other judges, ect, may impact judge directly or indirectly.
As mentioned, there is interrelation between individual independence and
institutional independence.
Without the former (institutional judicial independence), the latter
(individual judicial independence) cannot be secured and without the latter
the former does not serve much purpose. Therefore, the two, even if
separable, must be pursued together. A system which ignores one or the
other can not make much progress towards, much less achieve, the
independence of the Judiciary”.19
Institutional independence purports to also secure the independence of individual
judges working in the judicial system. Usually, but not always, a collective
independent judiciary provides a strong guarantee for the independence of their
judges. However, if the judiciary, as an institution, is dependent, the independence of
each individual judge serving therein will likely to be affected, because naturally the
dependence of the whole system will lead to the dependence of each individual
working therein. On the other hand, individual independence has its effect on
collective independence in that without the former, the latter would be rendered
meaning less. The institutional independence would be in vain if individual judges,
who eventually carry out the judicial function, were at the mercy of the legislative or
the executive. Should such a case happens, neither the rule of law would be
promoted nor human rights be protected.

2.2

International legal provisions on independence of
judges

2.2.1

LAWASIA’s Principles on Judicial independence

LAWASIA (The Law Association for Asia and the Western Pacific) was established
in 1966. This is a professional association of representatives of bar councils, law
associations, individual lawyers, law firms and corporations principally from the
Asia Pacific region. This association has adopted two sets of principles on judicial
independence: The Tokyo principles on judicial independence in 1982 (the Tokyo

19

Singh, M.P, “Securing the Independence of the Judiciary: the Indian Experience”, Indiana
International & Comparative Law Review (1999-2000) 245, at p.248.

14


Introduction
principles), and the Beijing statement on principles of the independence of the
judiciary in the LAWASIA region in 1995 (the Beijing principles).
The Tokyo principles mentioned the following matters concerning to
independence of judges: appointment of judges, remuneration and working
conditions, their career, and the influence from the executive on them.
Concerning the appointment of judges, it is affirmed that “there is no single model
of appointment of judges which is essential to their proper appointment” 20, and “in
different societies, different procedures and safeguards may be seen as of assistance

in ensuring the proper appointment of judges” 21. A “Judicial Services Committee”,
which includes representatives from the higher judicial courts as well as institutions
concerned in the administration of justice in the process of appointing judges is
recommended to be set up. However, the matters of how to set up such a commission
and how it works in the process of appointing judges are not clarified in the Tokyo
principles.
About tenure of judges, the Tokyo principles do not distinguish between
appointed judges and elected judges. Only one kind of tenure is suggested for judge –
life tenure. Moreover, some countries have two types of judges: professional judges
and lay judges and the life tenure is applied for professional judges only. This
difference is not mentioned in the content of the Tokyo principles.
Concerning judicial salary, working facilities, and relationship with the executive,
the Tokyo principles recognized that these factors are potential threats on
independence of judges. For example, if the executive has the power to transfer
judges from their current office to another court with less favourable working
conditions, or if the executive can reduce the judicial salaries at will… However,
solutions for such malpractices are not given.
In 1995, the Beijing principles was adopted, and then they was amended in 1997.
The Beijing principles inherit and support the content of the Tokyo principles, but
they are much more elaborated and prescriptive than the Tokyo principles. Several
new principles on the aspect of individual have been added. The Beijing principles
suggest that the judicial selection procedures must be clearly defined and formalized,
and all information about them should be public. This is an effective way to select
persons who are best qualified for judicial office. To restrain judicial promotion’s
adverse effects, the Beijing principles recommend that judicial promotion must be
based on an objective assessment of merit-based factors such as judicial competence,
integrity, impartiality, and experience. The Beijing principles also suggest that judges
must not be transferred by the executive from one jurisdiction or function without
their consent.
20

The Tokyo Principles, section 10.a

21

Ibid., section 10.b


Short title of the thesis

2.2.2

The International Bar Association’s Code of minimum
standards of judicial independence

The International Bar Association’s Code minimum standards of judicial
independence (hereafter called the IBA Code) was officially adopted in New Delhi in
October 1982. The IBA Code define the independence of judges including personal
independence and substantive independence. 22In comparison with the LAWASIA
principles, there are not much difference from the IBA Code, however, the IBA
principles are more elaborated and cover more factors affecting individual
independence than LAWASIA’s statement.
Concerning judicial discipline, which is not mentioned in LAWASIA principles,
the IBA especially concentrate on the threats from the executive, and strongly
recommend that the executive must not be in charge of judicial discipline. A lot of
measures have been devised to deter the executive from the internal administrative
business of court. Accordingly, “the Executive may participate in the discipline of
judges, only in referring complaints against judges, or in the initiation of disciplinary
proceedings, but not the adjudication of such matters. The power to discipline or
remove judges must be vested in an institution which is independent from the

Executive.”23In case the legislature is vested with the power of removal of judges, it
is the judiciary or a commission set up by it who should initiate the removal
process.24 IBA suggest that the best judicial disciplinary mechanism for the sake of
judicial independence is one administered or represented dominantly by the
judiciary.25
About tenure of judge, similar to LAWASIA principles, the IBA Code supports the
life tenure for all kinds of judges. In addition, temporary judges as well as
probationary period for judges are recommended not to be adopted because they are
potential threats on judge’s independence.

2.2.3

Universal Declaration on the Independence of Justice

The Universal Declaration on the Independence of Justice (Montreal Declaration)
was adopted in Montreal in June 1983 at the First World Conference on the
Independence of Justice. In this declaration, the following questions concerning
22

IBA Code, section 1.b, 1.c

23

The IBA Code, section 4.a

24

The IBA Code, section 4.b,c

25

The IBA Code, section 4, 31

16


Introduction
independence of judges are mentioned comprehensively: forces from which judges
should be independent, qualifications, selections and training, tenure,
disqualifications, discipline and removal.
Generally, the Declaration is considered the synthesized version of the standards
of judicial independence, which had been adopted before. It shares major views with
the principles of LAWASIA and IBA. Notwithstanding, it has a number of
peculiarities.
The Declaration does not categorize independence of judges into personal
independence and substantive independence like the IBA Code. In contrast to the
IBA opinion in favour of the role of judiciary in appointment of judges, the
Declaration insist on the fact that there is no single proper method of judicial
selection provided it safeguards against judicial appointments for improper
motives.26According to the Declaration, participation by the executive or legislature
in appointment process might be acceptable if “the appointment is made in
consultation with members of the Judiciary and the legal profession, or by a body in
which members of the Judiciary and the legal professional participate.”27

2.2.4

United Nations’ Basic Principles on the Independence of
the Judiciary

The United Nations’ Basic Principles on the Independence of the Judiciary (hereafter

called the UN Basic Principles) was adopted by the Seventh United Nations
Congress on the Prevention of Crime and the Treatment of Offenders in Milan in
September 1985. The content of the UN Basic Principles especially focus on the
factors that ensure the individual independence of judges including judicial selection,
working conditions, tenure, discipline, suspension, and removal. As far as their
contents are concerned, the UN Basic Principles are very similar to the principles and
minimum standards on independence of judges adopted before them. However, they
are much more general and seem to have political than practical value. This feature
should be explained that the UN is a global organization; therefore, their
recommendations must contain the most adaptive possibility to the diversified
contexts in the UN’s members’ states. These principles, as a result, are very general
substantively.

26

The Universal Declaration on Independence of Justice, section 2.14

27

The Universal Declaration on Independence of Justice, section2.14.b


Short title of the thesis

2.2.5

The Universal Charter of the Judge

The Universal Charter of the Judge (hereafter called the Charter) was approved at the
meeting of the Central Council of the International Association of Judges in Taipei

(Taiwan) on November 17th, 1999.
The Charter includes fifteen articles all of which are about the individual
independence of judges. As far as their contents are concerned, the Charter’s
provisions are similar to the substance of the international documents issued before
them. Unlike the IBA’s standards or the Universal Declaration on the Independence
of Justice, the Charter does not define clearly from whom and which should judges
be independent or how to prevent the interference from the other agents. About the
measures for ensuring independence of judges, the Charter recommends that “a judge
cannot be transferred, suspended or removed from office unless it is provided for by
law and then only by decision in the proper disciplinary procedure” 28. In the same
point of view with the other international documents, the Charter affirms that the
appointment should be carried out according to objective and transparent criteria and
by an independent body including substantial judicial representations. However, the
Charter does not explain what criteria are and how to form an independent selection
body. Security of tenure as well as remuneration and retirement also mentioned in the
Charter but in general way.
In a word, the provisions of the Charter is too general, they should be considered
the most basic principles concerning individual independence of judges. There is,
apparently, lack of practical solutions to ensure judges’ independence.

2.3

Individual independence of English judges

In England as well as most common law countries, judges have traditionally enjoyed
more independence and power than their counterparts in many civil code countries. 29
Common law judges have greater security of tenure and more autonomy over their
budgets and internal governance. This characteristic springs from the historical role
of judges in forming the common law system. Common law provisions have been
formed in adjudicative practice of judges, not by the legislative power. In other word,

judges are persons who make law.30 Independence of English judges are typical for
the judicial independence in common law tradition. Especially, since the
28

The Universal Charter of the Judge in 1999, Art. 8.

29

USAID Office of Democracy and Governance, “Guidance for promoting judicial
independence and impartiality”, January 2002, p.24
30

Gillespie, Alisdair A., The English Legal System, Oxford University Press, Oxford 2007, p177.

18


Introduction
Constitutional Reform Act 2005 has become effective in fact, a statutory protection
has been recognized the first time in the history of English law to protect
independence of the judiciary in general and that of individual judges in particular.
One of the most important changes in the Act is the abolishment of the position of
the Lord Chancellor in the judiciary, and the post of Head of the Judiciary is
transferred to the Lord Chief Justice. Independence of English judges are guaranteed
by a lot of elements. Free from politics, judicial immunity, high salary, security of
tenure, and a transparent appointment mechanism are effective factors making judges
independent. Besides, English judges also enjoy a reasonable accountability
mechanism (accountability matters concerning English judges will be discussed in
Chapter 2). Therefore, there is no considerable pressures on their individual
independence. However, most obviously, general measures ensuring judge‘s

independence include a transparent and effective appointment process, high salaries
and security of tenure. 31
First of all, it had better to have an overview of types of judges in English legal
system before approaching factors ensuring independence of English judges.

2.3.1

Categories of judges

The English judicial hierarchy can be broken down into three principal divisions:
• Senior judges
•

Superior judges.

•

Inferior judges.

Senior judges
According to the CRA 2005 (s60), senior judges are the most senior, and they are
judges who combine not only a judicial post but also an administrative/leadership
role.32 All senior judges serve in the higher courts; as a result, they are also
considered superior judges.
Superior judges
Superior judges are judges who discharge judicial functions in the higher courts –
High Court and above.33 Superior judges have unlimited jurisdiction in that their

31

Ibid,p.178

32

Ibid,p.178
33

Ibid, p.179.


Short title of the thesis
jurisdiction is not limited specifically by the statute unless there is a statutory
provision limits their jurisdiction.34
Inferior judges
Inferior judges are judges who do not exercise unlimited jurisdiction but instead their
powers are defined by statute.35 Accordingly, if the statute does not prescribe any
authority then they may not exercise any jurisdiction.

2.3.2

Security of tenure

Superior judges
Superior judges enjoy higher protection than members of inferior judges do. Puisne
judges and Lord Justice of Appeal hold office until retirement age (currently seventy
(s11(2) SCA 1981) “during good behaviour, subject to a power of removal by Her
Majesty on an address presented to her on an address presented by both House of
Parliament”. In other words, a superior judge cannot be removed without consent of
both House of Parliament. Only one judge has ever been removed in this way in
1830.36 And English judges prefer to assign than rather than be removed because this

discipline is considered the strictest penalty to their reputation.
According to the SCA 1981 (s11(8), where a superior judge is incapacitated or
disability the Lord Chancellor may remove him (s11(8). To ensure that this power
cannot be abused, subsection (9) requires judicial consent to this procedure. For
example, where the incapacitated judge is a Head of Division then at least two other
Heads of Division must agree, where it is a Lord Justice of Appeal the Master of the
Rolls must agree and where it is a puisne judge the appropriate Head of Division
must agree. So, all of the judges who must agree are all superior judges who enjoy
the similar security of tenure. This is an effective way to ensure that the measure can
never be used by a Lord Chancellor in an inappropriate manner.
Inferior judge
The security of tenure for an inferior judge is different from that of a superior judge.
Inferior judges must retire at the age of seventy but they are also subject to removal
by the Lord Chancellor “on the ground of incapacity or misbehaviour” (s17(4) CA
(1971). The procedures applied to inferior judges do not require judicial consent
those for superior judges. However, in order to protect inferior judges’ rights, the
34

Ibid, p.179.

35

Ibid, p. 180.

36

Ibid, p.181.

20

Introduction
CRA 2005 states that the removal of inferior judges must follow “prescribed
procedures” (s108(1)).

2.3.3

High salaries

Judges’ salaries are fairly high and are fixed by a non-governmental body, the Senior
Salaries Review Body (SSRB). A high salary was meant to protect them from
corruption.37 In 2008, a High Court judge will be paid £165,900; a circuit judge
£123,200, and Lord Chief Justice £230.400. 38The salaries is increase regularly by the
Government on the recommendation of the SSBR.39 The judges can enjoy high living
standard with their current salaries. However, English judges are appointed from
solicitors or barristers who have high remuneration. In comparison with such
remuneration, salaries of judges are not high ones. Most senior judges and many
circuit judges are appointed from the ranks of Queen’s Counsel, whose average
earnings are over £250,000 per year. 40 Therefore, in 2005, Lord Chief Justice Woof
warned that unless High Court salaries were kept at a level that did not undermine
the status of the job, there was a risk that senior barristers would turn down the offer
of a judicial post41 since the fact shows that salaries of judges are not really high in
comparison with remuneration of lawyers. Therefore, it is reasonable and necessary
to maintain high salaries for judges in order to attract good lawyers and ensure the
independence of judges.

2.3.4

Transparent appointment

In current time, judicial appointment are regulated by statutory law. The appointment
procedure are quite explicit and impartial since the changes in CRA 2005 was made.
All the relative information are public and most judicial positions are advertised in

37

Department for Consitutional Affairs, Judicial Salary Structure and Salaries 2007-2008, available
at< />38
39

40

41

Ibid.
Ibid.
Straw, Jack, The Governance of Britain – Judicial Appointments, 10/2007, available at
< />
Hazel Genn, Dame, The attractiveness of senior judicial appointment to highly qualified
practitioners-Report to the Judicial Executive Board, (2008), available at
< />

the national and legal media as legal journal, internet so that all qualified candidates
have opportunities to be selected.42
To be appointed to judicial office, it is currently necessary to have been fully
qualified as a barrister or solicitor for a minimum time period, 43 depending on the
office in question. Judicial appointment are made strictly on merit regardless of age,
gender, ethnic origin, marital status, sexual orientation, political affiliation, ect.44
All judges are appointed by the Queen on the recommendation of the Prime
Minister of the Lord Chancellor. In fact, the effect of the judicial appointment is

decided by the Judicial Appointments Commission (JAC). JAC is formed according
to reform of CRA 2005 in order to set up a transparent and effective appointment
process.45 The Commission consists of fifteen members; most of them are
representatives for judges and lawyers. The majority of the Commission are legally
professional persons, and this is important and necessary to evaluate the professional
qualifications of the candidates. No member can be appointed if they are in the civil
service in order to ensure the independence of the appointment process. The function
of JAC is to select the best-qualified candidates for the Lord Chancellor’s
consideration. The Lord Chancellor has only three options in the appointment
procedure: (i) accept the recommendation, (ii) reject the recommendation, (iii) ask
the panel to reconsider the selection. The Lord Chancellor does not have any power
in stage of selecting candidates. His power is limited in considering the
recommendation of the JAC.
There are currently four parts to the process of being selected as a candidate for a
judicial appointment: application, consultation, sift and assessment centre or
interview. With respect of the candidates who are not selected, JAC always informs
them the reasons clearly. In case such candidates do not satisfy with the JAC’s
decision, they may make complaint to the JAC, then the Judicial Appointments and
Conduct Ombudsman.46 The Ombudsman will consider the complaint only after the
complaint was sent to the JAC.
42

Lord Justice Thomas, The Position of the Judiciaries of the United Kingdom in the Constitutional
changes, 03/2008, available at <
.uk/docs/speeches/ljt_address_to_scottish_sheriffs.pdf>

43

Leach, Robert & Coxal, Bill & Robins, Lynton, British Politics, Palgrave Macmillan Press, China
2006, p.255.

44

Department for Constitutional Affairs, You be the Judge – Career Opportunities in the Judiciary
in England and Wales, 10/2005, available at <www.judicial-appointments.org.uk > accessed on
November 12th 2008

45

Woodhouse, Diana, United Kingdom – The Constitutional Reform Act 2005 – Defending Judicial
Independence the English way, Oxford Journal Vol 5 (2007), pp. 153-165, p.155.

46

Judicial Appointments and Conduct Ombudsman, Annual Report 2007-08, available at
<www.judicialombudsman.gov.uk>, accessed on 16th December 2008

22


Candidate who is appointed at the first time must usually serve as a “fee-paid”
judge before he or she can be considered for salaried judicial post. 47 Fee-paid judges
will sit in the courts or tribunals on a part-time basis, usually at least for fifteen days
a year. The purpose of fee-paid judge stage is giving the appointees the opportunities
to decide whether they want to be salaried judges and to help them to build up the
practical experience in adjudicating.48
In a word, the judgeship of English judges are effectively guaranteed by practical
provisions. It should not insist that the working conditions of English judge are the
best model for other countries because each nation has own social, political, and
economic conditions. However, with a high salary, strict procedures of removal, a

transparent and impartial appointment system, and having no pressure of
reappointment, the individual independence of English judges are much more
ensured than that of their counterparts in Vietnam

2.4

Vietnamese legal provisions on principles of the
independence of judges

2.4.1

Provisions on independence of judges in the legal
documents issued before the 1992 Constitution

Principle of independence of judges is one of constitutional principles in the state
apparatus in general and the court system in particular that are stated by all the
constitutions. Nevertheless, the content of this principle is not provided as the same
way in all constitutions. There is lack of apparent distinguish between the
independence of the whole court system and the independence of individual judges
in the constitutional provisions on this principle.
In the first constitution of Vietnam – the 1946 constitution, independence of
judges is mentioned that during the trial, judges shall obey the law only, and the other
state authorities shall not intervene.49 And in the No 13th Order dated on 24th January
1946 about the organization of court system and scales of judges, the duty of obeying
the law and justice of judges is provided once again. 50The provision of 1946
constitution is the prototype of the provision on independence of judges of Vietnam.
It sketched out the main aspects of the concept of independence of judges that are
inherited by the subsequent constitutions. The most prominent feature of the two
47
48

Slapper, Gary & Kelly, David, Principles of the English Legal System, 3rd ed., Cavendish
Publishing Limited, London 1997, p.137.
Ibid.

49

The 1946 Constitution, Article 69.

50

No 13th Order, dated on 24 January 1946, Article 47.

23


provisions above is that it does not mention at all the term “independence”. It is
likely to prescribe a legal status of the judge where he obeys no one but the law, and
other state authorities are not allowed to intervene. In fact, these provisions reflect
the property of the concept of impartiality of judges rather than independence of
judges. It is should be noted that in the first constitution, there is no article provides
on the institutional independence of the judiciary, the provision is only relevant to the
individual judge. Consequently, the emphasis on the individual independence easy
leads to confuse that the individual independence covers the institutional
independence.
While 1946 constitution does not mention the term “independence”, in 1959
constitution this term is used, however for the independence of the judiciary system
but the individual judge as in the 1946 constitution. This change proves that the
independence is focused rather than the impartiality and institutional independence is
of more interest than individual independence. It also might be alleged that the

objective of judicial independence is targeted at institutional independence than
individual independence. The same change is found in the provision of the 1960 Law
on Organization of People’s Courts “during trial, the people’s court has the right to
be independent and obey the law only” 51. Independence of judge is not mentioned in
both legal documents. Obviously, “the people’s court” covers the judges – who
directly conduct the judicial function of the court. Because of this unclear concept, it
may be understood that in this period institutional independence is more important
and paid attention than individual independence while the independence of the whole
system and each individual are at the same level and interrelated.
In the 1980 constitution and 1992 constitution, individual independence is
provided that during trial, judges are independent and obey the law only. 52The two
constitutions continue to state the independence of the judiciary, but individual
independence rather than institutional independence is now highlighted. Under the
Law on the Organization of the People’s Courts in 1981 and 2002, and Ordinance on
Judges and Jurors in 2002, the same content are stated. 53
In conclusion, in legal documents before the 1992 constitution, there is no
differentiation between institutional independence and individual independence, until
the 1982 the independence of individual judges is mentioned more clearly than the
formers.
51

The 1960 Law on organization of People’s Courts, Article 4.

52

See Article 131 of 1980 constitution and Article 130 of 1992 constitution.

53

See Article 7 of the 1981 Law on the Organization of the People’s Courts; Article 5 of the 2002

Law on the Organization of the People’s Courts; Article 4 of The 2002 Ordinance on Judges and
Jurors.

24