US embassy cable - 03HANOI1437

UNCLAS SECTION 01 OF 04 HANOI 001437 
 
SIPDIS 
 
SECDEF WASHDC//ISA/ACHAO// 
CDR USPACOM HONOLULU HI 
 
DEPARTMENT FOR EAP/BCLTV, DRL, AND DRL/PHD 
 
E.O. 12958:  NA 
TAGS: PGOV, PHUM, ECON, ETRD, EINV, SOCI, VM 
SUBJECT:  VIETNAM: Ongoing evolution of the role of 
attorneys 
 
Ref A)  HANOI 1411 
Ref B)  HCMC 0499 
 
1.  (U)  Summary:  The gradual process of judicial reform 
and development of a "rule-of-law" state in Vietnam have 
contributed to the rise in the prominence of lawyers.  The 
just-concluded Nam Cam trial (ref b) showcased pilot changes 
in court proceedings that are supposed to put defense 
attorneys on a more equal footing with prosecutors.  A 
revision to the Criminal Procedure Code expected to pass the 
National Assembly in December should institutionalize these 
changes and give defendants the right to have an attorney 
present from the time of initial police questioning.  (The 
current system only guarantees access from the time a 
defendant is formally charged -- very late in the 
investigation process.)  Vietnam's legal culture has 
traditionally been strongly biased in favor of prosecutors 
and police, and citizens have tended to avoid litigation as 
much as possible.  Continuing and substantial improvements 
in the ability of attorneys to protect the rights of their 
clients will hinge largely on overcoming a system stacked 
against the defense and still dominated by the Communist 
Party.  End Summary. 
 
--------------------------------------------- -------- 
Judicial Reform, Lawyers, and the "Rule of Law" State 
--------------------------------------------- -------- 
 
2.  (U)  "Judicial reform" in Vietnam describes a laborious 
but steady process -- in many cases supported by foreign 
funding -- that is promoting a larger role for lawyers along 
with the development of the overall legal and judicial 
system.  The legal profession does not have a longstanding 
tradition in Vietnam;  there was essentially no formal legal 
training in Vietnam from 1960 until 1979 (ref a). 
 
3.  (U)  According to Professor Luu Van Dat, Vice President 
of the Vietnam Lawyers Association (VLA),  for many years 
after 1945, "People's Advocates" (Bao Chua Vien Nhan Dan) 
represented defendants during court trials if approved in 
advance by the court.  The presumption was that anyone with 
common sense -- and, likely, with demonstrated loyalty to 
the Party and state -- ought to be able to handle such 
cases.  Professor Le Hong Hanh, Vice Rector of Hanoi Law 
University (Vietnam's largest law school), confirmed to 
poloffs that most judges before 1990 did not even have a law 
degree; they were appointed on the basis of their 
"achievements" (and, presumably, Party record). 
 
----------------- 
Becoming a Lawyer 
----------------- 
 
4.  (U) As war-time concerns faded in the mid- to late- 
1970's, the need for legal expertise became increasingly 
apparent, according to several Vietnamese legal experts. 
While there were a handful-- such as the VLA's Dat -- who 
had studied under the French prior to 1945, the relatively 
few Vietnamese law students matriculated mostly under 
scholarship in Eastern-bloc countries. 
 
5. (U)  In 1979, the GVN established Hanoi Law University 
(HLU).  Initially, HLU concentrated on training students who 
would become judges and prosecutors, according to Professor 
Hanh.  The lawyer's role was otherwise "very insignificant" 
under central planning, he added.  The shift towards a 
market economy raised the demand for legal training, 
Professor Hanh noted.  Other law faculties were created in 
Ho Chi Minh City, Dalat, Hue, and elsewhere (ref a).  Demand 
for lawyers grew rapidly from 1992 to 1999, but subsequently 
leveled off somewhat. 
 
6.  (U)  HLU, the largest and most prestigious Vietnamese 
law school, currently receives about 38,000 admissions 
applications per year but has a student body of only about 
4000 undergraduates and 300 graduate students.  Professor 
Nguyen Ngoc Chi of the law faculty at Hanoi National 
University (HNU), numbered his students at almost 2000, 
including about 850 part-timers, and 180 graduate students. 
Professor Nguyen Dang Dung at HNU noted that most law 
graduates now expect to work in the commercial sector as 
specialists on contracts and international trade.  Economic 
and commercial law courses are also currently the most 
popular at HLU, because students hope to parlay them into 
jobs in the commercial and private sector, according to 
Professor Hanh.  Demand for these courses outstrips 
available seats, so enrollment is based on academic records 
and admission tests.  However almost all of these courses 
are still taught by Eastern Bloc trained professors who 
themselves have never had international standard training in 
these areas.  As one law student commented to Econ 
Counselor, a Marxist-Leninist teaching commercial law seems 
to defeat the purpose.  Serious students of these subjects 
frequently seek graduate study overseas.  HLU Vice Rector 
Hanh conceded that very few of his faculty members have had 
time for further education.  The U.S.-Vietnam Trade Council 
has obtained private funding to work with the Ministry of 
Justice (MOJ) and several law universities to help develop a 
modern legal curriculum.  Embassy and the USAID-funded 
Support for Trade AcceleRation (STAR) Project are looking 
for ways to complement that work.  Ref A described current 
law school curriculum in detail, including the required dose 
of Communist/Ho Chi Minh ideology and indoctrination about 
relations between the State/Party and the law.  A bachelor's 
degree in law is now a requirement to become an attorney, 
prosecutor, or judge; trial attorneys as well as and judges 
and prosecutors now must meet additional requirements. 
 
-------------------- 
The Legal Profession 
-------------------- 
 
7.  (U)  Types of Lawyers:  Legal professionals in Vietnam 
are referred to as "luat gia."  They may join the Vietnam 
Lawyers Association (VLA), which now has about 30,000 
members, according to VLA Vice President Dat.  Their ranks 
range from the GVN's Chief Procurator down to minor district 
court functionaries, as well as holders of bachelor's 
degrees working in the private sector.  A more specialized 
subset of "luat gia," called "luat su," include primarily 
prosecutors, judges, and trial attorneys.  Dat estimated 
their numbers nationwide at only 2,500; they are also 
eligible for VLA membership. 
 
8.  (U)  Bar Association:  The National Assembly Standing 
Committee authorized the Vietnam Bar Association's 
establishment in 1987.  However, it was only in 2002 that 
Vietnam instituted an exam for admission to the Bar, after 
the NASC revised the Bar's statute (authorizing ordinance) 
in 2001.  Several hundred would-be attorneys took the first 
exam in 2002.  All must first take a six-month bar exam 
preparation course at a Ministry of Justice training school 
(ref a), following graduation from a university-level law 
faculty.  Since the requirement is new, the course's 
curriculum is still under development, according to HNU's 
Dung, who added that the course had been weighted towards 
criminal law procedures.  There has been considerable 
debate, according to Professor Dung, over both the course's 
content and the methods used to teach it.  According to the 
school's director, Dr. Phan Huu Thu, the school charges 
tuition (he declined to reveal the amount), but the GVN pays 
for attendees who are already GVN cadres.  Bar association 
membership increased dramatically from about 1,800 in 2001 
to the current level near 2,500 (still only 1 bar member per 
32,000 inhabitants).  The VLU's Dat explained this by 
recognizing "we need more attorneys."  Only two years ago, 
the Vietnam Bar Association spoke of the need to ensure the 
"quality" of attorneys when explaining why membership was so 
limited and was essentially "by invitation" only (usually 
based on Party service).  Not all VBA members are welcoming 
this change to an at least nominally merit-based system. 
 
9.  (U)  Legal Careers:  Before 1994-5, the GVN employed 
almost all law school graduates, according to Professor 
Hanh.  Since then, however, most graduates have gravitated 
instead to the private sector, with its generally better 
salaries and benefits.  The VLA's Dat said that the majority 
of those who become trial attorneys specialize in criminal 
law.  The remainder practice civil law, especially related 
to family, marriage, land, and property issues.  There are 
"a few" administrative lawyers, who primarily handle 
complaints against the state.  (Note:  recently-passed 
legislation to help victims of injustice obtain redress from 
the state may lead shortly to an increase in these numbers, 
although many questions remain about the implementation of 
that law, as septel will describe.  End note.)  Dat added 
that there is an even smaller number of economic, trade and 
commercial law specialists, and only "four or five" 
Vietnamese intellectual property rights attorneys.  Some GVN 
ministries face a serious shortage of qualified attorneys. 
The Ministry of Trade, for example, has no practicing 
qualified trade attorneys.  Almost all Vietnamese lawyers 
practicing in these areas have obtained additional training 
abroad, primarily in Australia and the U.S. 
10.  (U)  According to various contacts, most Vietnamese 
citizens associated courts and attorneys only with 
"criminal" activities and charges, and thus tried to avoid 
them as much as possible.  There is also a widespread 
assumption, especially among urban residents, that the 
courts are tools of the Party and State and that average 
defendants or plaintiffs are at a disadvantage.  Rumors of 
corruption among judges also lessen popular confidence in 
court proceedings.  The idea that attorneys can be involved 
with economic and commercial issues is particularly 
"unfamiliar" to most Vietnamese, according to the VLA's Dat. 
The clients of the few existing economic and commercial 
lawyers are almost exclusively foreign entities, he added. 
Many Vietnamese citizens prefer -- if absolutely necessary - 
- to use "arbitrators" instead of lawyers.  There are about 
100 such GVN-licensed arbitrators, including Dat himself. 
 
--------------------------- 
A Sea Change in the Making? 
--------------------------- 
 
11.  (U)  However, integration with the rest of the world is 
now changing how Vietnamese view lawyers, Dat claimed.  An 
extremely important change, he commented, relates to 
criminal lawyers.  The current Criminal Procedure Code does 
not adequately protect the rights of defendants, according 
to Dat, although it does formally stipulate that they are 
not deemed guilty until convicted.  As ref b reported, the 
Nam Cam case was one of several pilot cases testing new 
court procedures.  The most important development was the 
growing equality of defense attorneys and prosecutors in 
front of the judge.   Dat pointed out that this would not be 
easy for prosecutors, who have long been used to being in 
the driver's seat in the courtroom.  Judges too, still need 
to learn how to moderate the debate and will "make mistakes" 
for some time to come, he predicted. 
 
12.  (U)  The National Assembly debated revisions to the 
Criminal Procedure Code during its ongoing session, and 
expects to pass the revised Code at its next session in 
December.  According to Dat and press reports, the code's 
new draft contains language that would institutionalize 
these pilot changes in trial procedures, including a 
requirement that individuals have access to an attorney from 
the beginning of a case, i.e., at the time of initial 
questioning by police.  (Currently, attorneys only gain 
access after the prosecution and police conclude their 
formal investigation, which can take months or more than a 
year.)  The Procuracy took the lead in drafting of the new 
Criminal Procedure Code, but Dat noted that the VLA had been 
formally invited to comment on the draft.  While he admitted 
that the Procuracy will find the "psychology" of these 
procedural -- and conceptual --changes "difficult," he 
claimed that many in the Procuracy were "quite progressive" 
on the issue. 
 
13.  (U)  Toward the end of the Nam Cam trial, different 
local newspapers carried stories about statements reportedly 
made by some defense attorneys.  At least one article in a 
police-owned newspaper called for the prosecution of one 
defense attorney who had attacked the methods and 
credibility of some of the investigating officers in the Nam 
Cam case.  Other articles, including one written by a 
retired Supreme Court Chief judge and another on behalf of 
the Bar Association, defended the legality of the lawyers' 
actions, although they admitted that the tactics were rather 
"difficult" to accept. 
 
14.  (U)  Foreign lawyers:  As previously reported, over the 
last few years the GVN has realized through its attempts to 
implement the U.S-Vietnam Bilateral Trade Agreement and the 
World Bank and IMF agreements, that legal reform underpins 
its entire reform effort.    Vietnam's BTA obligations are 
now also a major driving force behind reform of the legal 
profession in Vietnam.  The BTA calls for liberalization on 
restrictions on activities of U.S law firms.  The MOJ, with 
significant assistance from STAR, is currently revising the 
1998 decree that regulates the operation of foreign law 
firms and lawyers in Vietnam.  Revision of this decree is 
intended to bring Vietnam into closer compliance with its 
BTA commitments to liberalize the legal services sector and 
bring Vietnamese law into closer harmony with international 
law and practice. 
 
15.  (U)  The current draft of the revised law on foreign 
lawyers does expand the scope of foreign lawyers activities 
but still restricts them and Vietnamese lawyers who work for 
them from actually arguing cases in court even if the 
Vietnamese lawyer has passed the Bar.  Contacts in the legal 
profession have indicated that the VBA is pushing for this 
continued restriction in order to force foreign law firms to 
partner with a domestic firm in order to take cases to 
court. 
 
16.  (U)  Comment:  The role of lawyers is very slowly 
evolving closer to international norms, to what appears to 
be the clear satisfaction of as least some in the Vietnam 
Lawyers Association and among the ranks of Hanoi's law 
professors.  Other elements, including the police and 
probably some judges, likely remain uncomfortable with the 
greater legal and procedural complexities these developments 
will represent.  The USG has in previous Human Rights 
Dialogues called on the GVN to allow defendants to have 
access to attorneys from the time of detention; the proposed 
revised Criminal Procedure Code would be a welcome step 
forward if adopted by the NA, as is probable given the 
publicity devoted to the current debate.  One big question 
will be the willingness of the Communist Party of Vietnam to 
end its behind-the-scenes oversight of the court system and 
allow the kind of more genuinely independent legal system up 
to international standards that Vietnam needs to accelerate 
its integration into the international economy and to 
attract additional foreign investment. 
PORTER