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Vietnam Law Enforcement
Vietnamese legal thought with regard to the treatment of
criminals is the result of three major influences: classic
Confucianism, the Napoleonic Code, and Marxism-Leninism. The
relevant Confucian concept is that society is to be governed not
by law but by moral men and that crime is symptomatic of an
absence of virtue that engenders conflict and disharmony. Most
important, the Confucian ethic provides no principle of judicial
administration. In imperial China, justice was an interpretation
of the moment by the emperor and his mandarins, meaning that in
every instance imperial will was superior to the law. The spirit
of the law the French brought to Vietnam was that guilt should be
determined by fair and impartial means and should be assigned
appropriate punishment. However, French colonialism inculcated a
view of the law as something to be manipulated and the courts as
institutions to be bribed or subverted. The result was a general
lack of respect for the judicial process. Marxism-Leninism added
to this attitude the perspective that crime is a reflection of
environmental factors that victimize the individual by turning
him into a criminal. The proper remedy for this condition is to
eliminate the causal factors while rehabilitating the criminal.
The combination of the three legacies has produced in Vietnamese
society a legal philosophy that is inquisitional rather than
adversarial, seeking reform rather than punishment. The system
imposes on the individual and the state the responsibility of
bringing all members of society to a condition of self-imposed
moral rectitude in which behavior is defined in terms of
collective, rather than individual, good. In contrast to the
West, where law is the guarantee of rights that all may claim, in
Vietnam the law concerns duties that all must fulfill.
Vietnamese law seeks to give the prisoner the right to
reformation. In theory, at least, there are very few
incorrigibles. It also permits a relativist approach in fixing
sentences, much more so than do the precedent-based systems of
the West. Mitigating circumstances, such as whether the accused
acted out of passion or premeditation, loom large as a factor in
sentencing. Murder by stabbing is treated more leniently than
murder by poison, for example, because the latter is perceived to
require a greater degree of premeditation than the former. The
personal circumstances of the accused are also a factor in
determining punishment. In the administration of criminal justice
in Vietnam, an effort is made to understand the criminal, his
crime, and his reasons; and the notion of permanent or extended
incarceration is rejected in favor of an effort to determine
whether or not and, if so, how the criminal can be rehabilitated
and restored to society.
Political crimes are treated less liberally, however. In such
cases, the administration of justice can be arbitrary and harsh.
Politics clearly plays a role in the arrest, trial, and
sentencing procedures. The rationale for this policy, which is
openly acknowledged, is that the revolution must be protected and
that the individual may be sacrificed, perhaps even unjustly, for
the common cause. The courts also take a more jaundiced view of
the rehabilitation of political prisoners than of common
criminals.
The court system was reorganized in 1981 into four basic
levels: the Supreme People's Court; the provincial municipal
courts reporting to Hanoi; the local courts, chiefly at the
district precinct levels, reporting respectively to provincial or
municipal governments; and military courts. In addition, a number
of specialized courts were created. In judicial procedure the
courts still owed much to the French example, particularly with
respect to the role of the procurator, who had much broader
responsibilities than the prosecutor or district attorney under
the Anglo-Saxon system.
On January 1, 1986, a new Penal Code officially went into
effect after nearly five years of preparation. It contained 280
articles divided into 12 chapters or sections. Unlike earlier
laws, the new code included detailed sections on juvenile and
military offenders. The first eight chapters defined jurisdiction
and judicial procedures; distinguished among infractions,
misdemeanors, and felonies; and outlined sentencing procedures.
The last section, consisting of four chapters, defined specific
crimes and fixed penalties. The code identified seven categories
of legal punishment: warning, fine, reform without detention,
house arrest, imprisonment, life imprisonment, and death. There
was no parole, but remission of punishment was possible and the
conditions for it appeared to be lenient (eligibility for
remission of a life-imprisonment sentence began after seven
years). In general, definitions of crime were broad, vague, and
could be interpreted so that virtually any antisocial word or
deed was indictable. Penalties were stern and included capital
punishment for a lengthy list of crimes. In 1986 Minister of
Justice Phan Hien defended in writings and interviews the new
code's long list of capital crimes, arguing that in general the
code was liberal. He cited as evidence that polygamy was a crime,
whereas adultery was not. Most serious crimes (all drawing the
death penalty) were crimes endangering the national security,
i.e., treason, "taking action to overthrow the people's
government," espionage, rebellion, sabotage, terrorism,
"undermining unity," spreading "antisocialist" propaganda,
"disrupting security," obstructing or inciting to obstruct state
agencies' activities, hijacking, destroying important national
security projects and property, and "crimes against humanity."
Upon arrest, an individual was taken first to a Ministry of
Interior records office where he was fingerprinted and
interrogated, and where his record was checked. He was then
remanded to a detention cell to be held until his trial. Posting
bail to obtain temporary release was not practiced, although in
some instances release on one's own recognizance was permitted.
Trials themselves were brief, businesslike, and conducted in
an informal, somewhat nonjudicial atmosphere. All participants
were expected to seek justice rather than simply to observe the
letter of the law. The defense was supposed to proceed in an
objective manner, meaning it was expected to pursue the truth and
not to engage in courtroom tactics "that distort the truth or
conceal the guilty person's faults." The defendant was expected
to confine his efforts to presenting facts that proved his
innocence or that supported his plea to the tribunal for
reduction of the gravity of the charge. In most trials, defense
strategy was not directed toward exoneration but toward a
sentence of reform without detention.
Sentences for nonpolitical crimes, and particularly for less
serious felonies, tended to fall into three categories: reform
without detention, reform with detention, and detention (i.e., an
ordinary prison sentence). Perhaps half of the sentences imposed
for these crimes were of the first category, and the remaining
half was divided more or less equally between the other two
categories. The system rested on the assumption that most
criminals could be rehabilitated, but the procedure required that
the individual petition the court for rehabilitation. The court
might also sentence a person to loss of civil rights, an
auxiliary penalty that deprived the individual of certain rights
for a specific period of time
(see Social Control
, this ch.).
Formal incarceration that resulted from judicial proceedings
might be either in a prison or a work-reform camp (detention with
labor). Vietnamese prisons imposed confinement in a manner more
or less like prisons anywhere in the world. Work reform camps
incarcerated prisoners as well, but also required them to perform
outside physical labor, constructing roads, clearing brush, and
similar tasks on contract for the state. Beyond confinement
arising from judicial proceedings, there was also administrative
detention that did not involve the courts and was usually the
result of action by party officials. Eligible for this type of
incarceration was a host of offenders that included juvenile
delinquents, foreigners (chiefly Laotians), northerners who had
defected to the South during the war, and "enemies of the people"
(those judged to be dangerous to society by virtue of their
social, political, economic, or family background). The largest
and best known facilities for
administrative detention were the re-education camps and social-
labor camps. Both were "educative" in purpose and both were
designed for "social negatives." The difference between the two,
insofar as there was any, was that the re-education camp was for
those whose attitudes, ideas, and beliefs required correction,
while the social-labor camps were for those of "backward
behavior," such as draft dodgers, tax evaders, and persons who
"spread social negativism."
In official Hanoi thinking, there was a sharp difference
between confinement as a result of judicial proceedings and
administrative detention. Those who were incarcerated in a prison
or a work-reform camp as the result of a court sentence were
considered incorrigible or without social value. Prisoners
confined under administrative detention were those for whom there
was some hope of rehabilitation. While the individual inmate
caught up in the system might find the distinction meaningless,
it was important for an observer of the Vietnamese judicial and
internal security system to bear in mind the distinction between
the two institutions.
Detailed information on Vietnam's prison system--the number
and location of its prisons and the size of its prison
population--has always been extraordinarily difficult to obtain,
and much of the information available in 1987 was questionable.
Hanoi had not published anything of consequence on the subject.
Credible available data tended
to combine statistics on prison, work-reform camps, and
administrative detention facilities. Each of the forty Vietnamese
provinces had at least one prison with a capacity ranging from
about 1,000 to 5,000 inmates. Some provinces also had what were
called model prisons, which resembled new economic zones in that,
in the spirit of modern penology, they offered the prisoners
financial incentives to engage in agricultural production. Most
of the district capitals had small prisons or detention centers,
and the PPSF (or PSS) operated detention cells in most villages
and some hamlets. In addition, there were perhaps a dozen central
(or national) prisons that could hold as many as 40,000 inmates.
The largest of these were the Hoa Lo prison in Hanoi (with a
branch in Haiphong) and the Chi Hoa prison outside Ho Chi Minh
City. The major cities also had detention centers (Hanoi had 18,
which could hold 500 prisoners each) where individuals were held
awaiting trial.
Life in a Vietnamese prison, as reported by ex-prisoners, was
harsh. There were work details for those in prisons, as well as
in the work-reform camps, that chiefly involved agricultural
production for prison use. Rehabilitation lectures were held
daily, and prisoners spent much time describing past behavior and
thoughts in detail in their dossiers. Visitors were permitted
only infrequently in most prisons. Discipline was strict, and
prisons in particular were well guarded; usually there was 1
guard for every 250 prisoners. In general, the use of torture,
corporal punishment, and what might be termed police brutality
were no longer legal but were still condoned by officials and
even accepted by the general public.
Data as of December 1987
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