US embassy cable - 03HANOI935

UNCLAS SECTION 01 OF 03 HANOI 000935 
 
SIPDIS 
 
SENSITIVE BUT UNCLASSIFIED 
 
STATE FOR EAP/BCLTV, DRL, DRL/PHD, AND DRL/IRF 
 
E.O. 12958:  NA 
TAGS: PGOV, SOCI, VM 
SUBJECT:  Lay Assessors:  More symbolic than useful 
 
1. (SBU) Summary:  "Lay assessors" in courts below the 
appellate level are Vietnam's rough equivalent of trial by 
jury.  Officials describe this system as an example of the 
GVN's commitment to promote public democracy.  Training 
remains inadequate and is likely to continue to be 
underfunded, virtually ensuring that their contribution to 
justice will be weak or marginal.  Senior court officials 
claim that lay assessors are "not very helpful" at best, and 
even "bothersome" in complicated, high profile cases, where 
they tend to be influenced "excessively" by public opinion. 
Court officials may more truly fear trial panelists 
independently making decisions in opposition to 
government/party guidance. End summary. 
 
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What Lay Assessors Do 
--------------------- 
 
2. (U) According to Vietnam's Criminal Procedure Code, 
criminal cases at district and provincial trial courts are 
heard by a judging panel composed of three members:  a chief 
-- who must be a judge -- and two "lay assessors" (hoi tham 
nhan dan).  The law requires that the two lay assessors be 
independent but equal to the judge.  As such, any 
disagreements among the three members of a judging panel  -- 
for example, on sentencing -- must be resolved by a majority 
vote.  In theory, the lay assessors can easily outvote a 
trained, qualified judge. (Note:  Many judges in Vietnam 
also lack adequate training, a problem that the USG is 
helping to redress in the context of USAID's USD8 million 
Support for Trade Adjustment Reform assistance program to 
implement the Bilateral Trade Agreement.  End note) 
 
3.  (U)  According to Tran Ngoc Nhan, Director of the 
Democracy and Law Department of the Vietnam Fatherland Front 
(VFF), lay assessors are supposed to represent the "common 
citizen" at court trials, to speak up for the common people 
regarding the seriousness of cases and subsequent 
sentencing, and to ensure that court rulings are "reasonable 
and just."  Lay assessors are not involved in appeals 
trials. 
 
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Choosing Lay Assessors 
---------------------- 
 
4. (U) By law, VFF committees at district and provincial 
level, in coordinating with the Standing Boards of the 
People's Councils, are responsible for identifying 
candidates to serve five-year terms as lay assessors. 
Frequently, local VFF committees nominate retired government 
and mass organization officials.  At the first session of 
each new People's Council at the district and provincial 
level every five years, each Council endorses a formal list 
of lay assessors.  VFF guidelines distributed three years 
ago recommended that -- in order to "enhance democracy" -- 
there be more candidates than there are positions.  VFF 
officials indicated that this guideline is "often" but not 
always implemented. 
 
5.  (U)  According to the VFF, a district-level court 
typically has 3 judges and a pool of about 30-35 lay 
assessors.  The lay assessors receive only 10-20,000 
Vietnamese dong (roughly $0.65-1.30) per trial, although 
these sums apparently may be increased during unusually long 
trials.  They also must pay for their own transportation. 
Lay assessors in mountainous or remote areas -- where it may 
take half a day for a lay assessor to get to the court for a 
one-hour trial -- receive an extra 20,000 dong per day. 
 
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Military Assessors 
------------------ 
 
6.  (U)  Military Assessors are the Military Court system's 
equivalent of lay assessors.  The Chairman of the Ministry 
of Defense's General Political Department chooses pools of 
military assessors for Military Zone Courts from among 
serving military officers nominated by zone-level military 
political departments.  Likewise, zone-level military 
political chairmen choose military assessors to serve on the 
lower level Military Area Courts.  Military assessors also 
serve five-year terms.  According to a senior Supreme 
People's Court official, it is often difficult to persuade 
military officers to agree to serve as Military Assessors. 
 
---------------------- 
Picking from the Pools 
---------------------- 
 
7. (U) The Presiding Judge of each court picks lay assessors 
from its pool for each trial.  According to VFF officials, a 
lay assessor attached to a court at district level typically 
serves once or twice a year, while provincial lay assessors 
serve somewhat more frequently.  Officials of the central 
VFF said that VFF guidance stressed that each pool of lay 
assessors must include a variety of professional backgrounds 
and represent different geographical units within a 
jurisdiction.  This is to ensure that lay assessors with a 
variety of professional backgrounds are available, that lay 
assessors have "something in common" with the defendants, 
and that defendant's home community is represented.  VFF 
officials gave two examples:  first, if the defendant is a 
student, then one of the two lay assessors should be a 
teacher, or at least someone with an education background; 
second, if the defendant is a woman from a particular 
community, then one of the two lay assessors should be a 
woman with responsibility for women's issues in that 
community. 
 
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Problems with the system 
------------------------ 
 
8. (U) Both VFF and court officials stated that many, if not 
most, lay assessors are too poorly educated about legal 
issues to conduct fair and forthright discussions with 
judges.  Thus, in most ordinary trials, lay assessors tend 
to "cave in" to judges because they do not have sufficient 
knowledge to debate points of law.  According to VFF's Nhan, 
lay assessors tend to become "yes-men," a problem 
exacerbated by the fact that their experience builds rather 
slowly due to non-regular service. 
 
9. (U) According to national-level VFF officials, both local 
administrations and courts "neglect" lay assessors and do 
not provide adequate training opportunities.  The only 
mandatory training is a one-day session conducted in the 
framework of the opening of the local People's Council.  The 
only other formal, systematic training occurs when local 
courts provide seminars on major law changes.  Given their 
token salaries, the lay assessors have no financial 
incentive to improve their knowledge of the law. 
 
--------------------------------------------- - 
Court Officials:  Little use for Lay Assessors 
--------------------------------------------- - 
 
10. (SBU) According to Ngo Cuong, deputy director of the 
Judicial Science Institute of the Supreme People's Court, 
the current system of lay assessors is, at best, "not very 
useful" and, in some cases, is even "bothersome" to the 
judicial system.  Cuong admitted that court officials have 
privately discussed how they should abandon the lay assessor 
system entirely. 
 
11. (SBU)  The worst problems, according to Cuong, occur 
when lay assessors participate in complicated and high 
profile cases.  Under "media pressure," lay assessors often 
merely echo public opinion, and behave "subjectively," 
paying little attention to interpretation of law articles, 
particularly regarding sentencing.  In such cases, judges 
frequently have difficulty convincing lay assessors to agree 
with them.  Consequently, the judging panel makes decisions 
according to the majority opinions of the lay assessors 
rather than the actual law, Cuong complained.  He alleged 
that this had led to many "unnecessarily harsh sentences." 
In these circumstances, all a judge could do was report 
"excessively strict rulings" to his/her superiors.  However, 
such reports are only relevant if the defendant decided to 
appeal, Cuong noted. 
 
12. (SBU) Cuong added that court officials have not dared to 
speak openly about abolishing the lay assessor system, 
because the VFF strongly and vocally supports the system, 
calling it a "good reflection of the Party's and State's 
policies to promote public democracy."  Central VFF 
officials compared their lay assessors to US jurors, 
claiming that "they are identical."  Court officials, on the 
other hand, said Vietnam's current lay assessors system was 
more like China's.  "Now that China is working on 
diminishing the importance of their lay assessors, we should 
do the same," said a senior expert from the Supreme People's 
Court. 
 
13.  (U)  In 1994, the Supreme People's Court succeeded in 
pushing for a change in the specialized Economic and 
Administrative courts.  At that time, the Standing Committee 
of the National Assembly passed an ordinance setting the 
composition of judging panels in these courts at one lay 
assessor and two judges.  According to Cuong, the change was 
"decisive," and has prevented lay assessors from being able 
negatively to affect rulings in those courts.  A circular 
recently signed between the central VFF and the Supreme 
People's Court, Ministry of Home Affairs, and Ministry of 
Defense regarding judges and lay assessors called for more 
coordination between the VFF and these courts; officials 
noted that it remains unclear whether the circular will have 
any practical impact. 
 
14. (SBU)  One court official claimed that the Supreme 
People's Court would like National Assembly to make a 
similar modification to the Criminal Procedure Code to 
change the balance of criminal trial panels also to two 
judges and one lay assessor.  However, the courts are 
reluctant to discuss this openly, because they fear even 
suggesting diminishing the role of lay assessors will spark 
a fierce reaction from the VFF, the official admitted. 
 
15. (SBU) Comment:  It is very unlikely that Vietnam's 
courts will modify, let alone drop, the current system of 
lay assessors any time soon, given their symbolic role.  The 
VFF strongly defends the existing system, while agitating 
for more attention from relevant offices and agencies to 
strengthen it.  However, given the lack of financial 
resources even to improve the quality of judges, there is 
little reason to expect much progress on lay assessor 
training.  It is also telling that Vietnamese legal experts, 
while in principle eager to move Vietnam more squarely 
toward a "law governed society" if not necessarily true 
"rule by law," appear nervous about trial panelists who may 
be voting their own conscience rather than following 
"guidance" from the courts (or their party cells). 
BURGHARDT