Nov. 2, 2007
Law professor Reitz advising Vietnam on reforming its court system
A University of Iowa law professor is working with the government of Vietnam on a United Nations-funded project to reform its system of administrative courts.
In his first conclusion to the report, John Reitz said the Vietnamese administrative law review system needs to be much more independent from the government and the ruling Communist Party in order to have credibility and legitimacy.
"The Vietnamese are aware of issues involving corruption in their administrative system and are looking for assistance in setting up a judicial structure to control that problem," said Reitz, an expert in comparative law. "They are opening their economy up more and more for international investment and they know that to attract further foreign investment, they need to strengthen the legitimacy of their legal system and adopt stronger versions of the rule of law."
Reitz studied nine countries' administrative action review systems at the request of the U.N. Development Project in formulating his recommendations for Vietnam. The countries are France, German, Sweden, the United Kingdom, the United States, Japan, Russia, Indonesia and Vietnam.
Administrative law review is the part of the judicial system that determines whether government agencies acted legally, or took action that is otherwise unfair or unreasonable. Judicial review of administrative action gives people or businesses the right to challenge a government action that violates the legal limitations on government power.
"The main focus of administrative law review is, did the government have the legal basis to act as it did?" Reitz said. "Providing a legitimate mechanism for citizens to redress administrative action goes a long way to creating legitimacy for a government."
Unfortunately, Reitz said, Vietnam's administrative law review courts are tainted by the country's one-party Communist political system that continues to hold sway over the judges. For instance, he said, it has been frequent practice for judges, prosecutors and party officials to meet and discuss the resolution of pending cases.
Judges are appointed by the chief justice of the Supreme Court, who is himself appointed by the country's president. Even during their short terms -- five years -- judges are subject to recall by the official who appointed them. Decisions are also influenced by so-called "telephone law," in which a party or government official calls a judge and tells him what to decide.
"I advised them that their judges need to have true independence from the government and the party, and unless those guarantees of judicial independence are in place, other reforms aren't going to mean much," he said. "It's important for judges to have the security of a reasonably substantial term, no matter what decisions they make. The best guaranty of independence that one finds around the world is life-time tenure, at least up to a mandatory retirement age."
Reitz also suggested the government adopt an administrative procedure code that would establish the procedures and policies governing how government agencies should make their decisions. Those codes, he said, give the courts a better legal foundation on which to judge the actions of the government. Right now, except for certain specific situations covered by special laws, the courts have no guidance as to what procedures and substantive values the administrative agencies should use.
As a result, Reitz said current judicial review is essentially limited to "policing the boundaries of the administration's substantive power. That is not an unimportant function, but judicial review confined to that function does not guarantee that the administration will treat the citizens fairly in matters it clearly has the power to regulate."
He said an administrative procedure code would give the judicial system a concrete basis on which to challenge unfair action by government officials.
"The courts still aren't very well established in Vietnam and without that tradition of a strong, independent judiciary, courts tend to avoid conflicts with the government," he said. An administrative procedure code could embolden the courts to insist on fair treatment.
Reitz submitted his report in September to the U.N. Development Project in Vietnam. After the Vietnamese have had an opportunity to translate it, he expects to receive comments and questions, and perhaps requests to supplement the research in certain respects.
An expert in comparative law on the faculty of the University of Iowa College of Law, Reitz is the associate dean for International and Comparative Law Programs and faculty advisor for the Law College's Masters of Laws (LL.M.) program that provides a program of graduate study in international and comparative law that especially serves lawyers trained in other countries' legal systems who wish to learn about the United States legal system.
He has taught or lectured at law schools and judicial training centers in Germany, New Zealand, China, Poland, Russia, Ukraine, and Vietnam. He currently studies comparative administrative law, with special interests in the development of the "rule of law" ideology in Eastern Europe and Asia, how new democracies are influenced by foreign legal models, and how the development of administrative law is related to democratization. Another focus of his research examines the specific ways in which all aspects of the legal systems of Western European nations and the United States reflect differences in political and economic structures.
STORY SOURCE: University of Iowa News Service, 300 Plaza Centre One, Iowa City, Iowa 52242-2500