Vietnam’s judicial system on trial

On 14 January 2008, two female postal workers were found murdered inside a small post office where they also resided in Vietnam’s Long An province.

Ho Duy Hai was detained two months later by the police and it was reported that he admitted to committing the crime. He inexplicably declined lawyers contracted by his family and only accepted the lawyer appointed by the investigative agency. No one was allowed to visit him until the trial day.

No witness could confirm Hai’s presence at the crime scene, the time of death was not ascertained and there were no matching fingerprints. More suspiciously, important physical evidence was unreasonably destroyed by the investigators — neither the Court of First Instance nor the Court of Appeal cast any doubt on this fact. Both courts found Hai guilty and disregarded his intermittent claim of innocence. The primary basis for the conviction was Hai’s confessions and testimony. The courts concurred with the investigators that if Hai had not been the murderer he could not have known that there was a knife hidden at the crime scene.

Hai’s mother has since started a crusade seeking justice for her son. In 2011, the Supreme People’s Court (SPC) and the Supreme People’s Procuracy (SPP) of Vietnam rejected an application to review the judgments. The President also rejected Hai’s request for mercy. But this did not deprive Hai’s mother of hope.

In December 2014, Hai’s execution was postponed by one day. Since then, several efforts have been made to have the judgments reviewed. The National Assembly’s Committee of Judicial Affairs (CJA) concluded in 2015 that arguments raised to convict Hai were poorly and arbitrarily constructed. The CJA also found serious violations of criminal procedure by judicial institutions in relation to the case.

The SPP has since dispatched a petition to the SPC requesting a cassation trial. The trial was opened in Hanoi from 5 to 8 May 2020. The cassation panel rejected the petition on the grounds that it was unlawful. In the panel’s view, the President’s rejection of Hai’s mercy plea precluded further judicial proceedings. The panel also concluded that Hai had confessed to the crime without coercion and that itself is sufficient to confirm his guilt, upholding the judgments of the lower courts.

Despite a number of procedural violations as indicated in the petition of the SPP, the panel asserted that the procedural violations would not alter the outcome of the case.

This decision has sparked public outrage. People have expressed their disappointment on social media and have raised questions about the panel covering up the wrongdoing of lower courts. Hundreds of articles and Facebook posts written by lawyers and legal scholars contend that the panel has failed to clarify doubts about the case. Its negligence in recognising and ignoring significant breaches of criminal procedure may set a dangerous legal precedent.

Several members of the National Assembly blame the Court for violating the Criminal Code by declaring the petition of the SPP unlawful and overlooking the fundamental principle of the ‘presumption of innocence’. The SPP reversed its decision and has declared it will take further action. Independent reporters have since found even more violations by provincial judicial institutions.

Rarely is there such divergence among judicial institutions in Vietnam. To be optimistic, it is a sign of democracy within the Communist Party of Vietnam (CPV). But it may also suggest a political struggle before the National Congress of the CPV scheduled early next year. In this competition, it appears that the SPC and the police stand together on one side against the SPP and the CJA on the other.

The life of Ho Duy Hai now rests in the hands of Parliament. It is peculiar that Vietnam’s Criminal Procedure Code allows the Standing Committee of the National Assembly to ask the cassation panel to review its decision.

But the story is no longer just about the life of Hai. The response to this case will decide the career path of prominent politicians. The Chief Justice is a member of the Central Committee of the CPV and may expect to become deputy prime minister like his predecessor. Losing his reputation at this stage will be fatal to his political life. But he did not expect such a reaction from the public. People even pointed out the clear conflict of interest and inherent bias in chairing the cassation trial of the same case he declined to review when head of the SPP.

The way forward for Hai is unclear although he cannot be executed in the near future. In recent years, there have been cases in Vietnam where defendants previously sentenced to death or life imprisonment were proven to be innocent. In these cases, their purported confessions were procured through severe torture and made under duress. Since admitting to its mistakes would be too politically costly for the judiciary — and the state has an incentive to protect its reputation — the fate of Hai remains uncertain.

The way forward for the judicial system of Vietnam is not any clearer. Activists have always called for greater separation of powers, affording courts greater independence and authority. But the recent developments have made people realise that more power for courts in the political system of Vietnam may also turn out to be risky. It seems people still prefer to have courts supervised by the National Assembly. This is the dilemma for the development of judicial autonomy in Vietnam.

By Duy Dinh – East Asia Forum – June 16, 2020