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Cablegate: Lay Assessors: More Symbolic Than Useful

This record is a partial extract of the original cable. The full text of the original cable is not available.

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.

---------------------
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.

----------------------
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.

------------------
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.

------------------------
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

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