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VIETNAM NATIONAL UNIVERSITY SCHOOL OF LAW TRAN THI ANH HONG THE RIGHTS OF ACCESS TO JUSTICE: UNDP’S APPROACH AND VIETNAMESE PERSPECTIVE MASTER THESIS HA NOI - 2020 VIETNAM NATIONAL UNIVERSITY SCHOOL OF LAW TRAN THI ANH HONG THE RIGHTS OF ACCESS TO JUSTICE: UNDP’S APPROACH AND VIETNAMESE PERSPECTIVE Specialized in Law on human rights Code No.: 8380101.07 MASTER THESIS Supervisor: A/Prof. VU CONG GIAO HA NOI - 2020 STUDENT DECLARATION I, Tran Thi Anh Hong, declare that this Master thesis is my work. The figures, references, and examples are accuracy, honesty. Student Tran Thi Anh Hong ACKNOWLEDGEMENTS With great joy, have I written this thesis, but I could not have done it all by myself. Special thanks to A/Prof. Vu Cong Giao, I could not wish a better instructor, who always by my side inspires me ―do not give up, do not give up‖. His willingness to help students, have face-to-face meetings for discussions with every step of my research, has helped me complete my thesis. Special thanks also to the School of Law, where we are always welcome. Thank you, the Government of Australia, that has sponsored the postgraduate program of human rights, supporting us the diversity of learning materials and seminars relating to human rights. At last, but certainly not least, my family and friends, who always encourage me to move on. STUDENT Tran Thi Anh Hong TABLE OF CONTENTS Student declaration Acknowledgements Table of abbreviations List of figures and tables PREFACE ........................................................................................................ 1 CHAPTER 1: THEORETICAL ASPECTS OF THE RIGHT TO ACCESS TO JUSTICE ...................................................................... 7 1.1. The conception of Justice and the Right to Access to Justice ......... 7 1.1.1. Conception of Justice ............................................................................ 7 1.1.2. Conception of the Right to Access to Justice ..................................... 10 1.2. Characteristic and connotation of the Right to Access to Justice ....... 14 1.3. Methods to ensure the Right to Access to Justice .............................. 17 1.4. The Role of the Right to Access to Justice ...................................... 21 1.5. The Right to Access to Justice in International Law ..................... 23 Conclusion of Chapter 1 ............................................................................... 27 CHAPTER 2: THE RIGHT TO ACCESS TO JUSTICE FROM UNDP’S APPROACH ...................................................................... 28 2.1. An overview of the Right to Access to Justice from UNDP’s approach ............................................................................ 28 2.2. Elements that ensure the right to access to justice from UNDP’s approach .............................................................................. 34 2.2.1. Legal Protection .................................................................................. 34 2.2.2. Legal Awareness ................................................................................. 39 2.2.3. Legal Aid and Counsel........................................................................ 43 2.2.4. Adjudication ........................................................................................ 49 2.2.5. Enforcement ........................................................................................ 56 2.2.6. Civil Society and Parliamentary Oversight ........................................ 59 Conclusion of Chapter 2 ............................................................................... 62 CHAPTER 3: SITUATION AND SOLUTIONS TO PROMOTE THE RIGHT TO ACCESS TO JUSTICE IN VIETNAM: ANALYSIS FROM UNDP’S APPROACH.................................... 63 3.1. An overview of the Vietnamese legal system related to ensuring the right to access to justice.............................................................. 63 3.2. Elements that ensure the right to access to justice in Vietnamese law: Analysis from UNDP’s approach ............................................ 65 3.2.1. Legal Protection .................................................................................. 65 3.2.2. Legal Awareness ................................................................................. 68 3.2.3. Legal Aid and Counsel........................................................................ 69 3.2.4. Adjudication ........................................................................................ 72 3.2.5. Enforcement ........................................................................................ 74 3.2.6. Civil Society and Parliamentary Oversight ........................................ 78 3.3. Shortcomings and limitations in ensuring the right to access to justice in Vietnam ......................................................................... 80 3.4. Solutions to ensure the right to access to justice in Vietnam following UNDP’s approach ............................................................ 88 3.4.1. Strategic Solution ................................................................................ 88 3.4.2. Specific Solution ................................................................................. 90 Conclusion of Chapter 3 ............................................................................... 92 CONCLUSION .............................................................................................. 93 REFERENCES .............................................................................................. 94 TABLE OF ABBREVIATIONS UNDP: United Nations Development Programme ICCPR: International covenant on Civil and Political rights ICESCR: International Covenant on Economic, Social and Cultural Rights ICT: Information and communications technology MARG: Multiple Action Research Group‘s MDGs: Millennium Development Goals MDGs: Millennium Declaration Goals NGOs: Non-government organizations. NHRIs: National human rights institutions OECD: Organization for Economic Cooperation and Development SDGs: Sustainable Development Goals SIDA: Swedish International Development Cooperation Organisation UDHR: Universal Declaration of Human Rights UNICEF: United Nations Children‘s Fund UNODC: United Nations Office on Drugs and Crime WJP: World Justice Program LIST OF FIGURES AND TABLES Table 3.1: Public opinion about local governance ....................................... 79 Figure 3.1: Social group analysis, guarantee of fundamental rights ............. 67 Figure 3.2: Vietnam‘s factor scores in WJP 2020 ......................................... 81 Figure 3.3: Vietnam‘s disaggregated scores for each of the sub-factors in WJP 2020 ................................................................................ 81 PREFACE 1. The urgency of the research topic If people break their arms, they probably go to a hospital. If they have a persistent cough, they might go to a doctor or a medical clinic. However, if they have a legal issue, such as an inheritance dispute, or a land dispute; in those cases, where people can solve their problem and how people can afford the services they need? Access to justice can help us answer that question. Access to justice is commonly known as the ability to use the legal system to plan their lives and resolve disputes. Justice is a concept that appears very early in human history, which exists in most human civilizations, ethnic traditions, and considers in various angles and aspects. Access to justice is a fundamental human right and an indispensable tool to protect other human rights. Justice and access to justice are essential for a fair society, which is the necessary condition for people to achieve freedom and happiness, so ensuring access to justice is also the top task of each country. The feudal society of Vietnam recognized people‘s aspirations about the right and justice by criticizing injustice, criticizing social inequality, condemning the bad habits of the state machine. The aspiration to burn a true justice of the Vietnamese people was also shown at the ―Judgment of the French Colonial Regime‖ by Ho Chi Minh: ―In Indochina, there are two types of justice. One for the French, one for the native. The French are judged as in France. The Annamese have no jury, nor an Annamese lawyer. Usually, the judge hears the judgment and verdicts the verdict in the absence of the defendant. If the Annam and the French get a lawsuit, the French are always right, even though this guy robs or kills people‖ with the exposing the male‘s trial to the south (no jury council, no attorney, no accused, etc.). When 1 claiming justice to the colonial countries in Indochina mentioned above, he also asserted: “The justice of the people of Vietnam is independent and free”. International law notes access to justice is both - a fundamental right and a tool to protect other human rights. In a sense being a fundamental human right, access to justice is regulated in the national legal system, tied to the personal demands of judicial remedies for the violation of rights in that country's jurisdiction. With the meaning of a tool to protect other human rights, access to justice is an essential solution for individuals to have the opportunity to protect their rights. Access to justice becomes a key goal in the mission of UNDP to alleviate poverty, resolve conflicts, and strengthen state governance. UNDP emphasizes the need to focus on the ability to seek and provide remedial measures for injustice, especially for poor and disadvantaged people, including women, children, ethnic minorities, people living with HIV/AIDS and disabilities. In the contexts of COVID – 19, the economic fallout of the crisis will put many groups in society further behind. The impact of the crisis as well as the legal and policy responses developed by states to counter the spread of COVID-19 have much wider ramifications that affect a broad range of human rights, including the ability of people to access justice in a timely, fair, and effective manner. The crisis also presents specific justice ‗needs‘, such as addressing the rise in gender - based violence and making additional institutional reforms to strengthen the effectiveness of the justice chain in a radically shifted social context [32]. In Vietnam, justice is a crucial goal of socialism, so justice and justice access requirements are as urgent as the foundation of idealism and direction for all social policies. However, Vietnam has not yet had many research 2 arguments regarding access to justice and the compatibility between Vietnamese law and international law in ensuring access to justice. So the author boldly took the topic “The Rights of Access to Justice: UNDP’s Approach and Vietnamese Perspective” as a master of jurisprudence specialized in law on human rights. 2. Literature review Access to justice has received the interest of many scholars in the country and international organizations. On the international presence, so far there has been many projects, intensive research, diversity, such as: UNDP‘s studies, UNICEF‘s, the World Bank‘s, WJP, or SIDA‘s, etc. In Vietnam, many research works on justice and the right to access to justice have been translated or published, substantially to the: - Justice: What’s the right thing to do, Michale J.Sandel, translation of Ho Dac Phuong, Tre Publishing House, 2015. - The Philosophy of law: A concise introduction, Raymond Wacks, translation of Pham Kieu Tung, Tri Thuc Publishing House, 2011. - Implementing judicial rights to ensure access to justice in the state of law, Dinh The Hung, Journal of State and Law, No. 5/2010. - Ensuring access to justice, the right to the legal assistance of persons with disabilities, Vietnam’s compatibility with international law, Tran Thai Duong, Jurisprudence Journal No. 10/2014. - Strategies for judicial reform to protect justice in Vietnam, Nguyen The Anh (2015), Master‘s thesis, Law Faculty, Hanoi National University. - Justice and access to Justice, Hong Duc Publishing House. - Michael J. Sandel (2010), Justice: what’s the right thing to do, New York: Farrar, Straus and Giroux. - UNDP (2016), 2015 Justice Index: Towards a justice system for the people. 3 - UNDP (2013), Justice Index: Assessment of Distributive Justice and Equality from a citizen – based survey in 2012. - UNDP (2004), Access to Justice, Practice note. However, on the aspect comparing the compatibility level of Vietnam‘s access to justice with the viewpoint on access to justice of UNDP, there is no comprehensive research in Vietnam, and the system on this topic is released. 3. Research Objective and Tasks 3.1. Research Objective Analysis of Access to Justice Approach of the UNDP and Vietnam‘s perspective and assess Vietnamese law and international law‘s compatibility on access to justice. The author proposed solutions to complete the assurance of access to justice in Vietnam. 3.2. Research Tasks The thesis will address the following specific tasks: First, clarify the theoretical issues of access to justice, the generalization of the characteristics, contents, roles, and methods of assurance of access to justice; simultaneously, consider the position of access to justice in the international legal system of human rights. Secondly, the study clarified the factors that secured access to justice in the UNDP perspective: legal protection, legal awareness, legal aid and counsel, adjudication, enforcement, civil society, and parliamentary oversight. Third, the Vietnamese legal system‘s overview of ensuring access to justice assesses the level of compatibility and protection of Vietnam with the factors ensuring access to justice in UNDP‘s opinion. Fourth, covering the existence and limitations of Vietnam concerning the factors that ensure access to justice in the UNDP‘s opinion, thereby offering complete solutions. 4 4. Research Subject and Scope 4.1. Research Subjects The study was conducted on the theoretical issues of access to justice, the factors ensuring access to justice in UNDP‘s opinion, the compatibility level of the law of Vietnam for these factors. 4.2. Research Scope Access to justice is a general topic that needs to be researched in a variety of fields. At the subject, the thesis focuses on the access to justice in UNDP‘s opinion and the level of compatibility of Vietnamese law with the factors that ensure access to justice in the opinion of UNDP. 5. Research Methodology and Methods 5.1. Research Methodology The thesis uses the methods of parenteral and the historical artifacts of Marxism, in conjunction with specific methods such as analytical methods, comparisons, and interpretation. The thesis uses the methods of parenteral and the historical artifacts of Marxism, in conjunction with specific methods such as analytical methods, comparisons, and interpretation. 5.2. Research Methods The method of analysis – synthesis is the method of the study of the focus of the thesis, which combines the analysis of theoretical and practical issues along with other methods of Marxism as the comparative method, statistical method. Besides, the historical method is used at the thesis in the study, research, evaluation, comparison of the views on justice through materials collection, the view of access to justice according to UNDP and Vietnam. Sources of data used are excerpted from assessment reports on UNDP‘s Justice Index, World Justice Projects, and the author‘s social investigation. 5 6. The contribution of this research The thesis provides in-deep analyses of theoretical, legal, and practical aspects of the right to access justice in Vietnam compared to the UNDP approach, which promotes this critical right in practice in the country. This thesis can be used to reference state agencies in the construction and implementation of relevant legislation. It can also be used as a reference for teaching activities, research in the School of Law, Hanoi National University, and other law schools in Vietnam. 7. Thesis structure - Chapter 1: Theoretical aspects of the right to access to justice - Chapter 2: The right to access to justice from UNDP‘s approach - Chapter 3: Situation and solutions to promote the right to access to justice in Vietnam: Analysis from UNDP‘s approach. 6 CHAPTER 1 THEORETICAL ASPECTS OF THE RIGHT TO ACCESS TO JUSTICE 1.1. The conception of Justice and the Right to Access to Justice 1.1.1. Conception of Justice ―The law is the art of goodness and justice‖ (Jus est ars bony aequi). So what is Justice? According to the Vietnamese Words and Languages Dictionary (Ho Chi Minh City General Publishing House, 2006), “Justice is the right awareness and respect for everyone’s legitimate rights.” From the dawn of human society, the general discussion of Justice is found in philosophy, sociology, politics, and the law‘s study and application. The concept of Justice is strengthened, renewed, and changed according to the length of human history. A Greece philosopher Socrates (470-399 BC) believed that it is better to be unfairly treated than to commit unjust, and if you have committed a crime, condemned is much better than escape [36]. Since being writhed under insult or unendurable physical pain, we are still honest and guiltless people, but those who unfairly treat us are evildoer; on the contrary, if we deliberately cause harm to others, we will be guilty, and others are honest. Socrates explained: people who commit crimes like those who suffer from internal diseases, are they better discovered by a doctor and then cut off the cure, or are they not detected or cured better? According to Socrates, happy is not about heaping up a tremendous amount of money and honor reputation, but caring about wisdom, truth, and the most remarkable improvement of the soul, respecting Justice. 7 Aristotle (384-322 BC), one of the most prominent political philosophers in history, argued that Justice is about equal treatment with equal and unequal people to those who are not equal, based on the difference in their status. He believed Justice was to give people what they deserve. In Aristotle‘s society, civil rights are reserved only for the upper classes; slaves and farmers are forced to work due to their poor life. For Aristotle, Justice is a matter of choosing to give people a role that matches their virtues and positions. Therefore, he protected slavery because slavery was a social role that suitable for some people. Immanuel Kant (1724 - 1804) supposed that justice is derived from an imaginary social contract (or unrealistic social contract). He believed: Basing on a group of people to agree on a social contract or constitution in the past is not enough to make that social contract or constitution fair so that existence could only be an imaginative collective agreement. In his view, a fair constitution aims to harmonize each individual‘s freedom with the freedom of all others. He wrote: No one has a right to compel me to be happy in the peculiar way in which he may think of the well-being of other men, but everyone is entitled to seek his own happiness in the way that seems to him best if it does not infringe the liberty of others in striving after a similar end for themselves. Unlike Aristotle, justice from Kant‘s judgment requires us to protect human rights for everyone, regardless of where they live or how much we know them, simply because they are human - a rational being and, therefore, worthy of respect. However, the limit of Kant‘s thought was that he did not depict what this imaginary contract was, how the principle of justice made, and how people reached an agreement on such an imaginary social contract. Just 8 about two centuries later, John Rawls – an American political philosopher, tried to answer them through his classic works: A Theory of Justice. John Rawls (1921-2002) stated: ―Justice is the first virtue of social institutions, as truth is of systems of thought‖. He said that there are two principles of justice in the imaginary social contract. The first principle guarantees the same fundamental freedom for all citizens, such as freedom of speech and religion. This principle is an inviolability founded on justice that even the welfare of society cannot override. The second principle relates to social and economic equality. It is that social and economic inequalities can be fair, as long as they are for the benefit of the least - disadvantaged members of society [36]. Throughout the work of A Theory of Justice, John Rawls proved and clarified his consistent notion: Justice as fairness. He wrote: For this reason, justice denies that the loss of freedom for some is made right by a greater good shared by others. It does not allow that the sacrifices imposed on a few outweighed by the larger sum of advantages enjoyed by many. Therefore, in a just society, the liberties of equal citizenship are taken as settled; the right secured by justice are not subject to political bargaining or the calculus of social interests [29]. Nowadays, in exploring the process of judicial reform and innovation in judicial activity in many countries, justice has three essential qualitative factors directly related to human rights assurance. First, the law court is where a trial is conducted fairly with procedural regularity by an impartial judge. They ensure that governments cannot convict someone or take away their liberty unless they follow fair and just processes, and people can trust and have confidence in the criminal justice system. Second, access to justice is a 9 fundamental principle of the rule of law, so it must be respected and guaranteed. Justice delayed is justice denied. Third, costs for access to justice must not be prohibitive; restraint or obstruction should be in the way of accessing justice by organizations and individuals. In brief, the concept of justice differs from time to time, is both subjective (each individual can have their feelings and assessments) and objective (guaranteed by the law). Although there is no unified understanding, justice can be understood as social values and moral values widely recognized by society and law. Justice is fairness, that means, both rightness and goodness. Justice corrects individual behavior and regulates community and social relations. 1.1.2. Conception of the Right to Access to Justice Access to justice is a fundamental right that involves an individual‘s ability to protect their rights in conformity with human rights standards and incorporates several fundamental rights such as the right to a fair trial. Similar to justice, it is not easy to define precisely what access to justice is. The definition of access to justice also changes from time to time. The words “access to justice” are admittedly not easily defined. However, they serve to focus on the legal system’s two primary purposes – the system by which people may vindicate their rights or resolve their disputes under the general auspices of the state [35]. United States lawyers said that access to justice is the right to have civil lawyers for all individuals. Meanwhile, South African lawyers emphasize the effectiveness of case law in protecting the less privileged people‘s rights in society. Specialists at the UNDP Committee on Legal Protection for the Poor said that the right to access to justice is one of the four pillars of the poor‘s legal protection process. The committee commented: It is vitally essential to reform public institutions and remove legal and administrative barriers that still prevent poor people from gaining their rights [62]. 10 The narrowest conception of ―access to justice‖ represents only the formal ability to appear in court, overcoming barriers to accessing the justice system. It has its origins in liberal 18th and 19th-century states and refers to an individual‘s legal right to litigate or defend. While access to justice was considered a ―natural right‖, governments did not feel a positive obligation to protect it through affirmative action programs. The definition of access to justice engages the broader social context of court systems. It comes up with the criminal justice system, which is a traditional point about access to justice. Starting in the 1960s, it focused on practicing law for the poor and the disadvantaged. The goal was to provide legal representation to impoverished individuals who could not otherwise afford legal advice. Traditionally, access to justice focuses on devising institutional arrangements to exercise their rights within the existing justice system. It aimed to counteract the cost, delay, and complexity of the legal system, focus on protecting the rights of the poor and the disadvantaged. This concept of access to justice forms the foundation for today‘s legal aid and poverty law clinics. The problem of access to justice is summarized as due to that the poor lose cases, injustice either because they do not use justice or because they do not know their rights, do not have money for an efficient representation in courts by lawyers. Generally, access to justice has traditionally referred to a range of institutional arrangements to assure that people who lack the resources or other capacities to protect their legal rights and solve their law-related problems have access to the justice system [30]. Today, the expansive view of access to justice includes not only one‘s ability to access the courts and legal representation but also one‘s ability to engage effectively with law enforcement officials and to make use of informal, non-state justice mechanisms. Civil society can provide the necessary support 11 for individuals and communities and offer an effective counterbalance to the state‘s powers and the private sector [55]. Access to justice is a fundamental right that generally guarantees every person access to an independent and impartial process, and the opportunity to receive a fair and just trial when that individual liberty or property is at stake. However, access to justice does not always involve judicial recourse but accessible, affordable, convenient, and effective redress or remedies. That expansion seems to beyond equality of opportunity for underprivileged or underrepresented litigants. Instead, it aims to achieve equality of dimensions. The restorative justice movement has taken hold as a significant movement in the justice system. Restorative justice emphasizes dealing with the aftermath of crimes and resolving the issues that brought the offender into conflict with the law in a manner satisfactory to the victim, the community, and the offender. Accordingly, access to justice is not only about the right to access remedial measures by the judicial system, but also an approach to ensure human rights, in particular, rights of vulnerable and marginalized groups. It shows a modern point of view, used more recently by nations, especially international organizations. From a rights-based perspective, access to justice refers to the ability of people from disadvantaged groups to prevent and overcome human poverty by seeking and obtaining a remedy through formal and informal justice systems, for grievances following human rights principles and standards. However, access to justice is not always accompanied by justice systems. A survey on people‘s perceptions of Justice in India taken by UNDP showed that slum dwellers prioritized access to justice concerning economic issues. In contrast, members of marginalized castes highlighted the social dimensions of access, and indigenous minorities highlighted the political 12
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