When judges are both independent and subject to independent oversight, they are more likely to adjudicate fairly and responsibly.
Such a judicial system gives businesses the confidence to invest significantly, over the long term, and across generations.
Dr. Le Minh Phieu discussed proposed solutions to this issue in the “Issues & Events” section of Bao Tuoi Tre.
Read the full article in Vietnamese here.
See the English translation of the article below.
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Justic and private sector development
A level playing field, predictability, and clear rules are the prerequisite conditions for sustainable and breakthrough private sector development.
That requires a judiciary that is both fair and transparent, in which the mechanisms for judicial appointment and oversight play a decisive role.
Resolutions No. 68-NQ/TW of the Central Committee and No. 34/2024/QH15 of the National Assembly on private sector development have introduced breakthrough policy orientations aimed at creating strong momentum for this sector. However, for these resolutions to be truly effective, far-reaching judicial reforms are necessary.
Two reasons why judicial reform is essential
First, business activities inevitably involve disputes: between enterprises, with customers, or even with the state. When a dispute arises, the way it is resolved can profoundly impact a business.
Therefore, a fair, independent, and effectively functioning judiciary is a prerequisite for entrepreneurs to invest boldly, for the long term, and with confidence in passing on their enterprises. In reality, many Vietnamese businesses, once they reach a certain size, hesitate to grow further, opt to sell to foreign investors, or the founders relocate their families abroad. Many send their children overseas to study, who then choose not to return to take over the family business.
A significant cause of this trend is the lack of confidence in the court system. This is the first reason.
Second, concerns the enforceability of legal decisions. A correct judgment is only part of the path to justice. If a ruling, however fair or sound, cannot be enforced, it becomes meaningless.
Take, for example, the widespread issue of unlawful capital appropriation in Vietnam’s economy. Both resolutions affirm the direction of minimizing criminalization of civil-economic relationships, prioritizing civil and administrative remedies first.
However, in reality, those whose capital has been wrongfully appropriated now have fewer legal recourses. In the past, they could hire debt collection companies, file criminal complaints under Article 175 of the Penal Code, or initiate civil litigation.
But debt collection services have been banned since 2021 (under the 2020 Investment Law). Filing criminal complaints is now increasingly restricted by new policy guidelines. This leaves only one option: civil litigation.
And if the courts and judgment enforcement agencies are ineffective or unable to enforce rulings, then the aggrieved party may still lose everything. Such a legal environment clearly discourages long-term and large-scale investment and undermines stable business partnerships.
Reforming the court system: Necessary and urgent
Vietnam’s court system has made notable progress in recent years — with high rates of timely case resolution, technological adoption, online hearings, and the development of case law.
However, beyond these positive statistics lie serious structural bottlenecks. Reform must focus on building a system that both protects judicial independence and ensures professional and ethical accountability.
The 2024 Law on the Organization of the People’s Courts (effective January 1, 2025) marks progress in this direction. Article 100 of the law stipulates that justices of the Supreme People’s Court are appointed until retirement or transfer. Judges of lower courts are appointed for a 5-year term initially and, upon reappointment, serve until retirement or transfer.
This represents progress compared to the previous system, where all judges served 5-year terms and required reappointment. The new provision helps strengthen judicial independence. However, it also carries the risk of entrenching power if not accompanied by adequate oversight. Independence without objective and external accountability can become a shield for irresponsibility or corruption.
Under Article 40 of the same law, the National Judicial Selection and Oversight Council is composed primarily of individuals from within the judicial and administrative system, including the Chief Justice of the Supreme People’s Court (as Council Chair), Deputy Chief Justices, and heads of military and high-level courts, alongside representatives of the Fatherland Front, the Vietnam Bar Association, and various ministries. The Council’s secretariat is staffed by units under the Supreme People’s Court.
This remains an internal mechanism, lacking external and independent members, and fails to inspire public confidence in an impartial and credible process for evaluating, appointing, and supervising judges.
In civil, economic, and labor cases — where judges are resolving disputes between private actors — those private actors have no voice in how judges are selected or evaluated.
International lessons: France and the UK
In France, Articles 64 and 65 of the Constitution provide for the establishment of the Conseil Supérieur de la Magistrature (CSM), a constitutional body independent from both the government and the courts, tasked with safeguarding judicial independence and overseeing judges.
CSM has two specialized panels — one for trial judges (magistrats du siège) and one for prosecutors (magistrats du parquet).
Although the President of France is the nominal chair (président de droit), they do not govern the CSM. Each panel includes judges, lawyers, legal scholars, and independent citizens — with a majority composed of individuals outside of the judiciary or public administration. Appointments to these positions are made by various branches of government: the President, the National Assembly, and the Senate.
Specifically: (1) The panel for trial judges is chaired by the First President of the Court of Cassation. Its members include: five trial judges, one prosecutor, one member of the Council of State, one lawyer, and six qualified individuals not belonging to Parliament, the judiciary, or the administration — with two appointed by each of the President, the President of the National Assembly, and the President of the Senate.
(2) The panel for prosecutors is chaired by the Prosecutor General of the Court of Cassation. It includes five prosecutors, one trial judge, a Council of State member, one lawyer, and the same six qualified individuals.
In the UK, judicial independence is ensured through distinct institutional mechanisms and a transparent separation of powers. Judicial appointments are handled by the Judicial Appointments Commission (JAC) under Section 62 of the Constitutional Reform Act 2005. The JAC includes judges, lawyers, and lay members not affiliated with the judicial system.
Ethical oversight is conducted by the Judicial Conduct Investigations Office (JCIO).
For senior judges, JCIO conducts investigations and submits findings to the Lord Chancellor and the Lord Chief Justice, but cannot issue disciplinary decisions. If the matter is severe enough to warrant removal, both Houses of Parliament must jointly petition the Monarch — an almost unattainable safeguard to preserve independence.
For lower-level judges, the Lord Chancellor and the Lord Chief Justice can impose disciplinary sanctions such as reprimands, suspension, or dismissal — based on JCIO recommendations. All disciplinary outcomes are publicly disclosed.
Institutional recommendation for Vietnam
To enact substantive change, Vietnam should establish an independent judicial appointments and oversight council under the National Assembly.
Its membership should be diverse: part drawn from the judiciary and procuracy, part from academia and the practicing legal profession (e.g., professors and lawyers), and — most critically — from respected citizens outside of any public or judicial institution.
Only then can the process of appointing, evaluating, and disciplining judges move beyond internal control, avoiding both protectionism and power abuse.
A judiciary where judges are both independent in judgment and subject to independent oversight is the true foundation of public trust in justice. When judges are empowered but also held accountable, they are more likely to adjudicate fairly, responsibly, and transparently.
Such a system inspires confidence in legal dispute resolution in the private sector, paving the way for long-term investment and generational business continuity — instead of reluctance, withdrawal, or capital flight.
