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Control of judicial power in the rule of law

(LLCT) -  Control of judicial power is a difficult and complicated problem both in terms of theory and practice, this comes from the internal contradictions of social life itself and the specificity of judicial power - it is independent from legislative and executive power. Judicial power is the jurisdiction that people assign to the court, this is the right to protect the common will of the nation by adjudicating constitutional and legal violations of citizens and State agencies; agencies, organizations and individuals are not allowed to interfere in the activities of judicial agencies. Protection of the law, justice and freedom of citizens are the primary responsibility of the judiciary. There may be many different ways of organizing the exercise of state power, but independent judiciary is one of the most important decisive principles of the rule of law.

Keywords: judicial control, judicial independence in the rule of law.

1. The concept of judicial power in the rule of law

From the time of ancient Greece and Rome, political-legal thinkers thought that where there was a law, there must be a system of institutions to ensure that the law was strictly enforced. These institutions are a system of judicial agencies. The term “judicial power” first appeared in Montesquieu’s treatise The Spirit of the Laws (first published in 1748). In book XI, Montesquieu explained that the legislative power is the right to “make laws,... amend or cancel the law” and executive power is the right to “decide on a draw or fight, send ambassadors to other countries, establish security, prevent invasion” and the right of judicial power to “punish criminals, arbitrate disputes between individuals”(1).

Following Montesquieu’s ideas, in The Social Contract (1762), Rousseau wrote: “When it is impossible to specify an exact ratio between the constituent parts of the state, or when the objective reasons constantly weaken the relationship between these parts, one must set up a special organization which does not participate in any parts. This body places each part in its proper place, acting as a liaison and mediating agent between the Government and the people, or between the Government and the highest power body, or between all three aspects when needed. This agency I call the judiciary”(2). Rousseau’s conception of judiciary is also not much different from Montesquieu’s, when it comes to judiciary, one must understand that it is court, it is a judicial activity of the court. Thus, both Montesquieu and Rousseau consider judicial rights to be the right to apply the provisions of relevant laws to clearly define the rights, obligations, responsibilities, legal consequences of the parties to the dispute based on objective details of the case. Through the exercise of judicial power, laws are applied, respected and observed by organizations and individuals in society. In other words, one of the “inputs” when exercising judicial power is law - the product of legislative power.

Under the influence of the Enlightenment jurists’ ideology, when building the Constitution in 1787, the founding fathers of the United States stipulated in Article III, paragraph 1 as follows: “American judicial power will be granted to the Supreme Court and lower courts that the Congress can establish in some cases”. And most of the constitutions of capitalist countries such as Japan, France, Germany, and Sweden, ect., when defining judicial rights, all consider it as the operation of the courts. Thus, the most general concept in the narrow sense of judicial rights from theory to the written constitutional construction of countries with a long history of constitutional history is understood as the jurisdiction of the courts.

The concept of judicial power in the Enlightenment period has a great influence on the formation of modern political - legal thinking. As defined by the Black’s Law Dictionary, judicial power (judicial power) is “the authority given to the courts and judges to review and decide cases and to render enforceable judgments with those incidents; the right to explain and apply the law when there is a dispute arising from whether something is appropriate or not in accordance with the law governing it”(3). In terms of theory as well as the practice in organizing the government apparatus in many countries around the world, people often consider the judiciary as one of the important branches of the State power system, often unifying the judiciary with court adjudication. Nowadays, in many countries, judicial power is recognized from many perspectives, but in the end, it is the right to judge, that in the name of justice resolves disputes, resolves social conflicts by adjudication, through adjudicative procedures by law.

In Vietnam, according to the Vietnamese dictionary, “judicial” means “the trial of illegal acts and lawsuits among the people”(4). And judicial right according to the Jurisprudence Dictionary of the Institute of Legal Science (Ministry of Justice) means: “the right to adjudicate criminal, civil, marriage, economic, labor, administrative cases... Judicial power is vested in the people’s courts”(5). And author Vo Khanh Vinh said: “Judicial power is the ability and capacity of the judiciary, to occupy a special position in the State apparatus to influence human behavior, to social submission”(6).

In Vietnam, since the 1946 Constitution up to now, the judicial body has been the People’s Courts at all levels, military courts and some special courts. Some institutions such as arbitration, mediation institution at the grassroots level, although the function is almost identical to trial, but cannot be called a hearing trial. Currently, judicial rights have been clarified in terms of competence, according to the 2013 Constitution, “The People’s Court exercises judicial rights” (Clause 1, Article 102).

However, it is also necessary to distinguish the judiciary from judicial authority. Stemming from the specific points of the political-legal institution, Resolution No. 49-NQ/TW dated June 2, 2005 on “Judicial reform strategy to 2020” states that judicial agencies are not only the courts, but also the procuracy, investigation agencies, judgment enforcement agencies. In Vietnam, in addition to the court system, there are other agencies that, although not exercising the judicial power, are outside the judicial system, but are still called and are considered judicial agencies. The Ministry of Justice (under the Government), the Judiciary Committee of the National Assembly, even the investigative body, the prosecutor’s office, the Procuracy, and the judgment enforcement agency are listed as judicial authorities(7).

From the peculiarities of Vietnam’s political, legal and administrative institutions, it is necessary that the investigative agencies and prosecutors participate in the exercise of judicial rights because the courts alone cannot conduct all activities from finding evidence, verifying, evaluating evidence to trial. There is also no country in the world that organizes a court system with all that functions and duties. When performing the task of legal protection, investigation agencies and prosecutors only participate to a certain extent in the settlement and protection of justice. The Court with its judicial function is always a mandatory subject of the procedural relationship. In that position, the court is the agency that plays a central role in the judicial enforcement system.

Thus, it can be understood that judicial rights in a narrow sense are limited to the Court with the judicial function, in the name of the State making a judgment for violations of the law or violations against the rights and interests of the public, organizations; applying laws; judging the lawful acts of State agencies and civil servants.

Justice - in a broad sense - is exercised through the operation of a system of legal protection agencies such as investigative agencies, prosecutors and courts. In that system of agencies, the court with the judicial function plays a central role and shows the most obvious judicial power. Investigations may be performed by law enforcement, but in the exercise of judicial function, or by prosecutors or the courts. Execution of judgments is not purely judicial in nature, but of administrative-judicial nature. Execution is the later stage of the trial, with no mission to determine the truth of the case, but only to enforce the judgment of the court.

With an approach to judicial rights focused on the right to adjudicate cases of the court, the judicial right has the following main features:

- Legally, judicial power is the right to make compulsory and enforceable decisions of public authorities (in particular, courts) on the true / false, legal / illegal of a certain act. The legal basis for exercising the judicial power (for the court to make a judgment) is law and law only. Products of the exercising the judicial power are the legally effective judgments of the courts, forcing all individuals and organizations, including state agencies to comply with. Therefore, judicial power is the right to force the acts of disputing parties to be judged by law. The exercise of judicial power (adjudication) is a form of law enforcement and through which the law is respected and protected. Therefore, judicial power is also the right to force the subjects in society to put themselves under the law, uphold the law.

-Socially, with the meaning of the right to resolve legal disputes, judicial rights, when done properly, will contribute to alleviate or resolve conflicts and tensions in society.

- Technically, exercising judicial power (adjudication) is a process by the court to make decisions to resolve disputes over the rights and legitimate interests of the parties. This decision-making process is quite special compared to the decision-making processes of the legislature or the executive. In this decision-making process, the quality of a decision depends not only on the professional qualifications of the decision-maker, but also on the amount and quality of information that the parties to the dispute provide to the court(8).

2. The inevitability and purpose of judicial control in the rule of law

State power is the power to authorize and represent, so the question here is how to authorize without losing power; to restrict the use of public power for private purposes. In short, how to solve the problem of not allowing state power to be corrupted and used for improper purposes, this has been a very difficult question both in terms of political and legal theory for a long time. Political - legal theory and practice in both the East and the West for thousands of years have shown that it is necessary to find a mechanism to exercise state power. The development history of the state is over 3,000 years, but the history of the decentralized state apparatus has only been about 300 years since the bourgeois revolution. Justice in the West is understood to be synonymous with trial, as the activity of the court is to find justice, fairness for all. In the West, judiciary is seen as a branch of power, balanced with the legislature and the executive. The process of searching for the model and method of exercising state power is the process of perfecting and optimizing state power organization in order to make it best display its power and meet the development requirements of society. The inevitability of controlling judicial power in the rule of law is manifested in the following reasons:

+ Judicial power is a delegated power: State power in general and judicial power in particular is the power delegated by the people. This delegation occurs when an entity, due to objective barriers, cannot solve specific problems related to the exercise of ownership by itself, and must go through another subject to do this work. This authorization is done through a contract which is also known as “social contract”. The attorney is authorized to exercise power on behalf of the subject that has authorized him under the contract, the authorizing entity plays the dominant role of the attorney, the attorney is only allowed to act within the scope of authorization. However, when authorized, there is a risk of power being abused. History shows that state power tends to be abused and “corrupted” by those who enforce it. For the state to strictly comply with the things it has mandated or agreed upon, ensuring that state power is used for the right purposes and brought into play effectively, it is necessary to assign, coordinate and control power.

+ The judicial power is held by the law enforcement team, so there is the risk of manipulation, led by personal interests. To ensure enforcement, state power needs to be concentrated to create common power, but this results in the rulers themselves having a need to satisfy their own personal interests. This stems from human selfishness, greed as well as the wish to satisfy one’s desire for power(9). In terms of nature, human beings are always self-interested, influenced by different types of emotions and desires. The people who are authorized exercise the judicial power which represents the common will and aspirations of the majority, and use the power to run general affairs as agreed in the “contracts”.  But in the process of exercising the judicial power, the line between the public interest and the individual interest; common interests and private interests are sometimes not clearly distinguished. This leads to the risk of common power (delegated power) being manipulated, led, and dominated by personal interests. Therefore, if there is no rational organizational mechanism, the use of common power for private interests is very likely to happen. To overcome this situation, in the organizational structure of power, people consider establishing a mechanism to assign, coordinate and control power in order to fight corruption, against the trend of state power being used for personal purposes.

+ Control of judicial rights must be a necessary condition for state power to be used properly, ensuring the freedoms of citizens. Justice and power are closely related, “justice that does not rely on power is powerless; power is not coupled with justice is brutal. So it is necessary to combine justice and power, and for this purpose, in any how justice should be given enough power; or things based on power must be in accord with justice”, this is what the great French writer Pascal affirmed in 1662.

The state is the only subject to exercise the right of enforcement, it is directly related to the guarantee of the basic rights of citizens. Judicial right is the jurisdiction of the court, this directly affects the freedom, property rights, and moral rights of individuals and organizations. If this right is properly implemented, it will build up people’s belief in justice; on the contrary, it would seriously violate the basic rights of citizens. Due to its sensitivity and vulnerability to abuse, judicial rights need to be under constant scrutiny so that the right decisions can be made in the judicial process to create mechanisms to protect the rights of citizenship, establishing people’s belief in justice.

3. The forms of judicial control in the rule of law

Firstly, supervision is the term used to refer to an overarching review of an entity outside the system towards the object of another system. According to the Encyclopedia: “Supervision is a form of activity of a state agency or a social organization to ensure the law or the observance of certain general rules”(10). The Sino-Vietnamese dictionary compiled by Dao Duy Anh explains: “To supervise is to monitor and to impeach”(11). According to this concept, to supervise is to monitor. The monitored subject is also to be questioned by the supervising subject. The Vietnamese dictionary compiled by Nguyen Nhu Y defines: “To supervise is to monitor and check the implementation of tasks”(12).

From a legal perspective, according to the Law Dictionary: “Supervision is the monitoring and observation of activities that are active, regular, continuous and ready to act with positive measures to force and steer the operation on the right trajectory and regulations to achieve the predetermined goals and efficiency, ensuring that the law is strictly followed”(13). According to the concept of administrative science, “Supervision is used to refer to the activities of state power agencies, courts, social organizations and citizens to ensure strict compliance with the law in social management”(14). Thus, the administrative science concept of supervision is very broad, including the internal monitoring system of the State apparatus and the surveillance system outside the State apparatus.

Supervising is tracking and reviewing the regulations observation of the subject to see whether it is right or wrong. Therefore, supervising activities are purposefully aimed at targeting supervisee to comply with regulations and implement solutions set by the supervisor. The supervision should: “be independent and must ensure objective requirements”(15). Also in the book Understanding some terms in the document of the 10th Congress of the Party, the authors said that: supervising is “monitoring, checking, discovering, evaluating of individuals, organizations and communities over other individuals, organizations and communities in the field of socio-economic activities, in the implementation of the Constitution, laws, the Party’s lines and views, State policies, rights and obligations of citizens, of socio-political organizations and bringing out recommendations to promote advantages, achievements, and handle individuals and organizations that commit wrongdoings”(16).

Although there are different views, the connotations of surveillance have things in common: the observation, monitoring of a subject with a certain subject to be supervised. It can be understood that supervision is monitoring and reviewing the activities of the competent subject, demonstrating the proactiveness, continuity, frequency and impact by positive measures to direct the activity of the subject (supervisee) to comply with the regulations.

According to the current Vietnamese Constitution and laws, the surveillance system includes two types: supervision within state institutions (with State power) and social surveillance (media surveillance, press, civil society ...). Supervision of State power includes: supervision of elected bodies (National Assembly, People’s Council); supervision of the People’s Procuracy for judicial proceedings of the People’s Court and investigative agencies(17). The supervision of these agencies is aimed at ensuring the law, the correctness of judgments and court regulations.

Social supervision over judicial rights is the supervision of non-state social institutions such as supervision of citizens through the exercise of the right to complain and denounce; supervision of the Fatherland Front and its member organizations; supervision of the press and media in exercising judicial rights. The supervision of these subjects is not of state power, but it creates pressure, social public opinion forces the judiciary to comply with the law, ensure justice, the rigor of the law when making judgments and judicial decisions. These observers do not have the right to impose State-power coercive measures.

The evaluation should be carried out effectively. Evaluating is understood as “looking at the actual situation to assess and comment”(18). Evaluation is to examine and assess the performance of agencies, organizations and individuals to see if they are in accordance with the law and to take measures to ensure and restore that conformity. Evaluation activity is of an internal nature, is an activity of the subject to examine and verify if something of the subject under supervision is consistent with a predetermined state or not. Evaluation is a regular and continuous activity.

The competent subject has the authority to inspect the performance of its function on the basis of the law; the evaluation can be conducted periodically or irregularly. The subject conducting the inspection has the right to oversee the operation of the agency or organization to see if it is in accordance with the assigned functions and tasks; it has the right to request the examined subject to provide documents and evidence related to the inspection; and has the right to propose directions, deadlines and ways to overcome the shortcomings.



(1) Montesquieu (1748): The Spirit of the Laws (Vietnamese translation by Hoang Thanh Dam), Political Theory Publishing House, Hanoi, 2006, pp.105-106.

(2) Jean-Jacques Rousseau (1762): The Social Contract (translation by Hoang Thanh Dam), Political Theory Publishing House, Hanoi, 2004, p.218.

(3) Bryan A. Garner (ed.): Black’s Law Dictionary, 9th ed. (St. Paul, MN: 2009), p.924.

(4) Hoang Phe (ed): Vietnamese Dictionary, Da Nang Publishing House and Dictionary Center, 1997, p.1034.

(5) Institute of Legal Science - Ministry of Justice: Law Dictionary, Encyclopedia Publishing House and Justice Publishing House; Hanoi, 2006, p.657.

(6) Vo Khanh Vinh: Judicial right in a socialist rule of law of the people, by the people, for the people in Vietnam, Journal of State and Law, No. 8/2003.

(7) The term judicial agency in Vietnam is currently not understood and used consistently in the Party’s documents and the State’s laws. It is necessary to distinguish the term judicial agency from the term “judicial branch” agency of the executive system (including the Ministry of Justice, judicial departments and divisions). Although these agencies all have the phrase “judicial”; attached to the agency’s name, but in reality, these agencies do not directly conduct judicial activities. According to their assigned functions and tasks, these agencies are state management agencies for a number of judicial organizations and activities (civil judgment enforcement, lawyers, notarization, judicial examiners...); In addition, in the field of law-making, the Ministry of Justice is assigned to preside over the development of a number of legal documents directly related to judicial activities (such as the Criminal Code, the Civil Code, and the Implementation Law Code on Implementation of Judgments, Law on Lawyers...), it is a member participating in and evaluating all legal documents as a legal basis for the organization and operation of the judiciary.

(8) See also: Nguyen Van Cuong: Judicial right in a socialist rule of law - Issues in the new situation, http://www.moj.gov.vn.

(9) Regarding individual selfishness, in Leviathan (1651), Hobbes pointed out that man is an essential self-interested entity, self-interest is the engine that drives man’s actions. According to Hobbes, self-interest and a thirst for power are lost only when people die. Montesquieu said: “Whoever has power tends to abuse power and they keep using it until the limit is met”. The British historian, Lord Action affirmed: “Power always tends to be corrupt, absolute power will lead to absolute corruption”.

(10) Center for dictionary studies: Vietnamese encyclopedia, Encyclopedia Publishing House, Hanoi, 2002, p.112.

(11) Dao Duy Anh: Sino-Vietnamese Dictionary, Culture and Information Publishing House, Hanoi, 2003, p.154.

(12) Nguyen Nhu Y: Vietnamese Dictionary, Culture - Information Publishing House, Hanoi, 1998, p.728.

(13) Institute of Legal Science: Jurisprudence Dictionary, Encyclopedia Publishing House, Hanoi, 1999, p.174.

(14) National Academy of Public Administration: State administration and Administrative technology, Science and Technology Publishing House, Hanoi, 2007, p.217.

(15) Dao Tri Uc: Conception of supervising the exercise of state power and the mechanism of supervision implementation, Journal of State and Law, No. 6-2003, p.7.

(16) Ngo Van Du, Hong Ha, Tran Xuan Gia: Understanding some terms in the documents of the 10th Congress of the Party, National Political Publishing House, Hanoi, 2006, p.184.

(17) According to the provisions of the Law on Organization of the People’s Procuracy and the law on criminal proceedings, in the process of supervising the investigation, the People’s Procuracy has the right to: “approve, not to approve the decision of investigating bodies according to the provisions of law, decisions to apply, change or cancel unlawful decisions of investigation agencies” and “decisions to prosecute defendants; decisions to suspend or suspend temporarily investigations”.

(18) Vietnamese Dictionary, Social Science Publishing House, Hanoi, 1994, p.882.

Dr. Tong Duc Thao

Ho Chi Minh National Academy of Politics

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