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Wednesday, 03 February 2016 10:07
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Improving the effectiveness of legal aid to ensure human rights in Vietnam

(LLCT) - Many people experience difficulty in finding lawful representation because of mental or physical disabilities or because their income is too meager to afford a lawyer when they encounter law enforcement and are arrested, detained, investigated, or prosecuted. Those in such unfavorable circumstances, therefore, are in desperate need of appropriate legal aid provisions so that they know their rights and so that these rights are adequately protected against any violation.

1. Current legal aid in Vietnam and its issues

Legal aid constitutes one of the important policies by the Communist Party and State of Vietnam and is of profound political and legal significance. On the 6th of September 1997, the Prime Minister issued Decision 734/TTg to establish an organization that provides free legal services for the poor and beneficiaries of social policies. In 2006, the National Assembly introduced the Law on Legal Aid as an important legal framework for the provision of legal services and to raise public awareness on human and civilian rights of vulnerable groups, including the poor, the disabled, the elderly, ethnic minorities, and orphaned and abandoned children. The Law on Legal Aid ensured that the legitimate rights and interests of people in the process of prosecution would be protected. This legal precedent established a more equal ground for the enforcement of laws and its introduction improved the country’s political and social stability. Provided legal aid, vulnerable groups will be able to understand the law better, receive fair, equal treatment by the law, and be appropriately protected by it. This is also a measure to improve the legal status of vulnerable groups. However, legal aid activities remain limited or insufficient; the human and civilian rights of those entitled to such assistance have not been effectively ensured.

Some law stipulationsconcerning the right to legal aid are inadequate.

According to the Law on Legal Aid of 2006, people entitled to legal aid services include the poor, veterans, ethnic minorities residing in especially socio-economically disadvantaged regions, the disabled, familyless elderly and orphaned and abandoned children. However, households who survive just beneath the poverty line and cannot afford legal services are not included in this list and have had difficulty gaining legal aid services. As a result, they have become a vulnerable group in the legal environment and are in need of legal support or assistance.

In terms of human rights, typically vulnerable groups such as children and the disabled have been entitled to equal legal aid services regardless of their circumstances. According to the Law on the Disabled, introduced in 2010, all disabled people have the right to legal assistance. However, the Law of Legal Aid stipulates that only orphaned and abandoned children are to be provided legal assistance, which does not ensure equal access to legal aid for children. Also, the Law has created overlap and contradiction with the Code of Criminal Procedure as it stipulates that orphaned and abandoned children under 16 years of age are entitled to legal aid services while the Code of Criminal Procedure stipulates that defendants and the accused under 18 years of age shall be appointed a lawyer if they do not hire one themselves.

People who are entitled to legal aid still have limited access to it.

Although legal aid has been provided for the poor and beneficiaries of social policies over the last 18 years, a number of people who are entitled to legal aid, especially those living in rural or remote areas, are not aware of that right. Measures that have attempted to raise public awareness of legal aid rights have not received adequate attention and are hence limited and insufficient. Also, legal aid services have not been very effective, limiting their influence on the public. If people are not knowledgeable about their civil rights, they are disadvantaged in the legal environment, experience difficulty in finding legal representation when needed.

Legal aid activities have not been focused, the provision of legal aid has not been effective, and the quality of legal aid services is under expectation.

Organizations provide legal aid by offering legal advice, participating in legal proceedings, or acting as representatives beyond the proceedings. However, legal services that provide participation during court cases only accounts for 5.8% of all cases requiring legal assistance, and representation beyond legal proceedings is even smaller at only 0.17%. According to international principles, norms, and laws on human rights, legal aid in procedures, especially criminal procedures,is the most important legal assistance service. In legal proceedings, the presence of alegal representative is very important for the protection of legitimate rights and interests when they face the danger of being violated.

Legal aid services have not met organizational requirements and have not achieved adequate results. Although legal counseling is the most common form of offered service, accounting for 92% of all cases, the counseling remains ill-prepared, too general, or has failed to identify people’s specific legal problems and violated interests or to suggest appropriate solutions. In a number of criminal cases, legal aid providers were not engaged at all in the initial stages of investigation. In other cases, attorneys only attended court without thoroughly studying files or meeting with their client in order to gather additional evidence or details necessary for a strong case.

Some legal aid methods remain formalistic and limited.

Mobile legal services, considered an important aspect of legal aid provision, has handled the most aid cases and has received a considerable budget. However, in some areas, mobile services remain formalistic and mostly aim to disseminate laws amongst the public instead of assisting them with their specific legal troubles. As a result, these areas of the service have not received much concern from the public.

Causes of the above-mentioned problems or limitations include the following:

Legal aid centers have yet to identify their central task in providing services to people with legal troubles to protect their rights and interests. As a result, their operations lack focus. Legal assistants and lawyers are meant to handle cases and participate in legal proceedings. However, they mostly carry out administrative tasks and not many actually engage in the legal process.

The involvement of various sectors in the provision of legal aid is not really practical or effective. The Law on Legal Aid stipulates that the Fatherland Front and its member organizations, law organizations, and lawyers, along with other organizations and individuals, should be encouraged to provide, contribute to, or assist with legal aid services. Although the Law on Lawyers generally stipulates lawyers’ responsibility for providing legal aid, there is no specific regulation enforcing such responsibility. As a result, not many lawyers are involved in the aid services. According to the Lawyers’ Federation, from 2011 to 2013, only 5% of the country’s lawyers, 398 out of 7,800, participated in 5,248 litigation or free legal counseling cases(1). Lawyers who provide legal aid were primarily inexperienced professionals who, perhaps, used pro bono cases as an exercise in law practice.

Although both lawyers and legal assistants provide legal services for their clients, legal assistants have not been considered equal to lawyers. According to the Law on Legal Aid, legal assistants are allowed to participate in legal proceedings in order to protect legal aid beneficiaries. However, since the Law on Criminal Prosecution does not provide for this position, some prosecution organizations do not allow legal assistants to participate in legal proceedings. According to international practices, people who provide legal aid must be lawyers. Therefore, Vietnamese legal assistants’ relationship with the legal environment is relatively ambiguous, resulting in ineffective service and a disadvantaged system.

Laws on legal aid stipulate coordination between prosecution bodies and local legal aid centers to explain civil rights to people involved in legal cases, referring them to legal aid centers where they can request appropriate assistance. However, prosecution bodies including courts, prosecutors and police have only marginally coordinated with each other and there exists no official regulation enforcing such coordination.

The quality of legal aid has not been well managed. Although there are criteria for assessing the quality of legal aid cases, assessments remain formalistic or subjective. In fact, state management bodies in charge of this oversight have failed to control the quality of legal aid cases. They have yet to evaluate the usefulness of legal aid in protecting the legitimate rights and interests of those who receive such these services.

Finance is another important factor that influences the effectiveness of legal aid. According to the Strategy for Provision of Legal Aid in Vietnam, from 2011 to 2013, an average of one million VND was spent on each case, with most involving only legal counseling. Compared to the average costs of the legal services market, these returns are not particularly low. However, due to the unreasonable allocation of budget, of which only 5% was provided for legal aid cases, legal aid assistants did not feel motivated or encouraged to provide legal aid services or improve their quality. In addition, the existing corporate mechanism does not include the number of annual cases carried out by legal aid assistants as a consideration for their salaries, bonuses, or promotion prospects.

In some localities, the finances for legal aid centers is still being provided according to the number of staff on record even though these centers are public service organizations and perform multiple special legal tasks. As demands for legal aid do not depend on how many staff members operate at the center, the current financing mechanism is wasteful and inappropriate.

2. Some measures for improving the efficiency of legal aid and ensuring human rights in Vietnam

Given the current legal aid situation and the Party’s and State’s commitment to guaranteeing human rights, the following measures are necessary going forward:

Firstly, the Law on Legal Aid must be revised. A comprehensive scope of legitimate legal aid must be identified in order to provide appropriate services for legal proceedings, especially criminal ones. Legal aid assistants should be assigned annual targets for the number of legal proceedings cases in which they are to serve. Also, legal aid should be made part of lawyers’ compulsory work and an annual quota should be set for pro bono cases. Law offices and companies should use rewards or incentives to encourage lawyers to take these cases as well, such as tax reductions or exemptions. Legal aid provision should be included as a criterion for ranking, rewarding, and honoring lawyers and law offices. Vietnam could also adopt a policy of requiring junior attorneys to provide legal aid services, as is the case in other countries. Reasonable financial resources should be allocated for legal aid related to litigation by cutting administrative costs and extraneous activities performed by legal aid centers. The budgetary provisions for legal aid agencies must be based on people’s demands for such aid and on the efficiency of its provision rather than on the number of staff members working at the agencies.

Secondly, the Code of Criminal Procedure needs revision and supplementation. Clearer legislation is required to appropriately outline the rights of those entitled to legal aid and the consequent duties of the organizations that conduct legal proceedings in explaining those rights. People who participate in legal proceedings must be referred to as legal aid assistants and, eventually, lawyers in order to match international practices and ensure equality between free and commercial legal aid services.

Thirdly, access to legal aid must be improved by stipulating that those entitled to legal aid have a right to be defended by lawyers or legal aid assistants, including temporary detainees, defendants, or the accused in criminal cases and also plaintiffs,victims or others involved in criminal, civil, or administrative cases. Organizations that provide legal aid and legal proceedings must be responsible for ensuring people’s access to legal aid.

Finally, the provision of legal aid must be managed rigorously. The management and evaluation of legal aid must be conducted by, for example, subjecting organizations providing legal aid to independent evaluation. The Ministry of Justice Legal Aid Department should take on greater responsibility in this aspect of oversight. In addition, the quality of legal aid should be considered in developing the budget for legal aid operations.

 

MA. Dang Thi Loan

Institute of Human Rights

Ho Chi Minh National Academy of Politics

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