ECONOMY – POLITICS History of Legal Thought 1945 – 1956 (Part 5: Ho Chi Minh’s Legal Thought after the Debate of 1948)

The four preceding articles have outlined the history of legal thought since the August 1945 revolution until mid-1948. During the first three years (1945 to 1947), Vietnam’s legal system was built and operated on the basis of the idea of “independent judiciary”. This independent legal thought and system helped strengthen the Democratic Republic of Vietnam regime amidst the wartime context, operating with the goal of upholding justice, punishing certain officials of the revolutionary government when they abused power to oppress the people or took advantage of the wartime situation for personal vendettas. The judiciary also steadfastly maintained its independent stance from the executive branch, resisting the millennia-old feudal tradition of the judiciary serving as an arm of the ruling elite. However, by February 1948, President Ho Chi Minh directed the judiciary to “unify” with the executive branch, effectively ending its independent status. Just over a month later, Communist members organized ideological attacks against the independent legal system, which President Ho Chi Minh himself had established and enforced since 1946 to build a socialist legal system, wherein the judiciary must obey the executive branch and serve the class struggle. Legal intellectuals countered all arguments of the Communists.

However, despite the fact that the attacks on independent judiciary, both in terms of ideology and practice, by Quang Dam in the “Truth” newspaper could not withstand intellectual criticism from legal professionals, just a few months later, in November 1948, President Ho Chi Minh issued Decree No. 254, dated November 9, 1948, on “Reorganizing the People’s Government during the Resistance War”, granting judicial power to the judiciary.

Decree No. 254, November 9, 1948: Judiciary Replaces Legal System

This decree holds historical significance. If Quang Dam’s opening attack merely signaled a change in the Communist Party of Vietnam’s ideology, this decree marked that change in reality.

Article 22 of this decree grants the Administrative Resistance Committee of the inter-regional administrative districts the power of prosecution equivalent to a court, meaning this administrative body both governs society and adjudicates like the judiciary, akin to the functions of prefects and governors in the feudal regime, acting as both players and referees in a game.

Although this decree pretends to seek input from the Director of Legal Affairs, this pretense shows that the function and authority of the judiciary have been controlled: they are not only no longer independent but are reduced to merely providing opinions, advisory in nature.

Furthermore, Article 23 of this decree allows the inter-regional administrative authority to arrest and restrict people from leaving their residence with only the requirement to “seek the opinion of the district director of legal affairs”. The judiciary no longer has the authority to order the release of unlawfully detained individuals. Every month, the administrative committee will meet with the Director of Legal Affairs to “review” cases of arrest. Thus, the Director of Legal Affairs is officially placed within the administrative structure, grouped with other “departments” such as health, culture… as Quang Dam suggested five months earlier.

This decree, therefore, contradicts Decree No. 40, dated March 29, 1946, signed by President Ho Chi Minh himself, which stipulated that only the judiciary had the authority to issue arrest warrants. The executive branch was only allowed to make arrests without a judicial decision in cases of flagrant offenses but had to transfer the case to the judiciary within 24 hours (Articles 1 and 2).

However, given the wartime circumstances, Decree No. 40 of March 29, 1946 also specified special cases when the administrative authority needed to urgently arrest individuals, related to the struggle for independence. Of course, this decree in 1946 absolutely protected the independence of the judiciary: even in those special cases, the decision on the fate of the defendant belonged to the court. They had the right to overturn the decision of the executive branch and release the defendant (Articles 12 and 14).

Decree 254 of November 9, 1948, in complete contrast to Decree SL-40 in 1946, was signed by President Ho Chi Minh immediately after the attack on independent legal thought and the legal system, despite the fact that the arguments against independent judiciary had been refuted.

Prelude 1948 – 1949 

One year after the initial attack, in April 1949, the author “Tân Dân” wrote an article titled “Vietnamese Judiciary – Independent or Not Independent” in the “Reader’s Opinion” section of the “Truth” newspaper (Issue 110, April 25, 1949). “Tân Dân” reiterated the debate and repeated the points made by Quang Đạm, as if these points had never been refuted. Tân Dân acknowledged that the 1946 Constitution stipulated “independent judiciary,” but simply reiterated the points explaining the meaning of the concept of “independence” as Quang Đạm had done. Tân Dân only went further than Quang Đạm in one aspect by explicitly mentioning the Soviet Union: we abolish independent judiciary, placing the judiciary under the control of the executive branch, as that is the progressive path of the Soviet Union.

At the same time, Minister of Justice Vũ Đình Hoè also lost much power within the judiciary system after 1950. Real power in the Ministry of Justice was transferred to Deputy Minister Trần Công Tường, a Communist Party member trained in the Soviet Union. Since early 1948, the Ministry of Justice had been divided into two agencies, A and B. Agency A was led by Minister Vũ Đình Hoè, based in Thái Nguyên. Agency B, led by Deputy Minister Trần Công Tường, was based in Vĩnh Phúc. Campaigns to reform the judiciary to serve class struggles in various disputes, including land disputes, lawsuits, and land reforms, were all carried out by “agency B.”

Socialist Legal System in the Early 1950s

By the year 1950, President Ho Chi Minh officially carried out what Quang Đạm had spoken of in 1948: turning the judiciary (courts) into a tool for class struggle.

“The law is the weapon of a ruling class, used to suppress the class against itself; the old law was the will of French colonialists, not the common will of our people. The old law was established to maintain true social order, but that social order only benefited the feudal colonialists, not the entire people. The primary purpose of the law is to suppress oppression. Feudalists established laws to oppress peasants. Capitalists established laws to oppress workers and the working people. Our law today is the will of the leading working class in the revolution.” (Ho Chi Minh, State and Law, Volume III, Labor Publishing House, 1971, page 138)

Peasant judges try defendants in court following the model of communist judiciary.

By November, President Ho Chi Minh signed Decree No. 158-SL on November 17, 1950, stipulating the inclusion of “successful public officials” into the judge’s profession (Article 1). While in the opening of the attack on independent judiciary, Quang Đạm still acknowledged the judiciary as a profession requiring specialized skills, with this decree, President Ho Chi Minh no longer required judges to be formally trained in law, but rather the standard for becoming a judge was being part of the “public officials” group.

On the same day, he signed Decree No. 156-SL, effective from November 22, 1950, allowing inter-regional administrative agencies to establish inter-regional courts, giving these courts the jurisdiction of military courts (Article 5), which previously only tried “counter-revolutionary” crimes.

With these two decrees, he merged civilian courts into military ones, while also handing over this system to “public officials.”

When the class struggle reached its peak during the land reform, he signed Decree No. 150 SL on April 12, 1953, allowing local administrative authorities to establish “special people’s courts” in areas where land reform was launched. The courts were only temporary, to be dissolved after completing their mission (Article 2). Regarding the composition of the court, the decree stipulated that “half of the judges shall be appointed by the Farmers’ Union or the Farmers’ Congress at the district or inter-district level. When a trial is conducted in a commune, additional farmers from that commune shall be included, but the number of additional representatives shall not exceed one-third of the total number of judges.”

Thus, the judiciary was not only an institution established by the executive branch but also established temporarily, for a short period, solely to execute short-term punitive tasks. Half of the judges were farmers, but when the court came to the locality for trial, additional farmers from that area were added, hence, farmers dominated the judiciary force.

This was the first time such a phenomenon appeared in Vietnamese history. In the feudal era, a district magistrate also served as a judge, but surely all district magistrates had to be educated, passing the state examinations, before being appointed as officials. In the judiciary system designed by President Ho Chi Minh through the aforementioned decrees, essentially imported from the Soviet Union and China, uneducated peasants were recruited to positions deciding the fate, life, and property of others without any formal education.

Land reform: Peasant judges pronounce death sentences and carry out executions on the spot.

Moreover, even an uneducated peasant could be recruited to a temporary “court”; after issuing a death sentence, the court would be dissolved, and that peasant would bear no responsibility for the verdict they had pronounced.

Thus, within a span of less than ten years, from 1946 to 1953, the documents related to law and judiciary issued by President Ho Chi Minh could be divided into two contrasting periods. The first period comprised documents following the republican spirit, such as the 1946 Constitution and the initial decrees establishing an independent judiciary and protecting individual freedoms. The second period consisted of decrees following communist ideology imported from China, organizing the judiciary as a tool serving the government, turning uneducated peasants into judges to pronounce verdicts in land reform. The dividing milestone between these two periods was 1948 when a debate erupted within the Democratic Republic of Vietnam government between two paths: communism and republicanism regarding the judiciary.