How do Vietnamese lawyers provide legal support to Doan Thi Huong?
Malaysian law does not allow foreign lawyers who do not practice in Malaysia to participate in litigation as lawyers, so Vietnamese lawyers cannot defend Doan Thi Huong.
As reported on the afternoon of March 2, Lawyer Do Ngoc Thinh (Chairman of the Vietnam Bar Federation) said that there are currently 5 lawyers belonging to the Federation.lawyerVietnam volunteered to go to Malaysia to provide legal assistance or defend Doan Thi Huong. March 1, FederationlawyerVietnam has sent official dispatches to the Ministry of Foreign Affairs and the Ministry of Justice regarding judicial assistance for Doan Thi Huong.
Many readers wonder how Vietnamese lawyers will participate in the case, what procedures are followed, what preparations are needed...? We would like to introduce the opinion of lawyer Nguyen Van Hau (Ho Chi Minh City Bar Association), who has participated in defending Vietnamese citizens in foreign courts.
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| Doan Thi Huong (center) after the indictment announcement in Malaysia. |
No excuses
Malaysian law does not allow foreign lawyers who do not practice in Malaysia to participate in litigation as lawyers, so Vietnamese lawyers cannot defend Huong. However, in Vietnam and other countries, there are regulations that foreign citizens who are tried in their country must have a lawyer to defend them. In fact, Malaysia has also sent a Malaysian lawyer to defend Huong. Thus, if approved by the relevant agencies, Vietnamese lawyers can only participate in providing legal support for Ms. Huong.
In addition, although Vietnam and Malaysia have not signed a mutual legal assistance agreement, they are both members of the ASEAN Agreement on Mutual Legal Assistance in Criminal Matters (signed on November 29, 2004 in Kuala Lumpur). This agreement is binding on the signatory countries on a number of issues.
According to Article 1, Clause 1 of this Agreement:“The Member States shall, in accordance with the provisions of this Agreement and in accordance with their national law, afford one another the widest possible measure of mutual legal assistance in investigations, prosecutions and subsequent proceedings.”.
Article 1.2 of this agreementmutual legal assistance measuresmay include:Collect evidence or take voluntary statements from relevant persons; arrange for relevant persons to provide evidence or assistance in criminal matters; carry out the service of judicial papers and documents;…
Therefore, Vietnam has the right to send legal representatives to provide legal support to protect Doan Thi Huong.
Article 17, Clause 3 of the 2013 Constitution stipulates: Vietnamese citizens abroad are protected by the Socialist Republic of Vietnam.Therefore, participating in supporting the protection of citizen Doan Thi Huong is the right and obligation of competent Vietnamese authorities.
Vietnamese lawyers will support Malaysian lawyers on issues such as: Personal information, collecting relevant documents, evidence documents favorable to Huong. They can also provide language support, mental support for the defendant, monitor the progress of the trial... But the powers and responsibilities of Vietnamese lawyers must comply with regulations. If you want to strengthen the protection to ensure legal strictness, you can hire a lawyer practicing in Malaysia to participate in the case.
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| Police escort Doan Thi Huong (center) after the announcement of the indictment in Malaysia. Photo: Reuters |
How to register and what to prepare?
If countries do not have a Mutual Legal Assistance Agreement on criminal matters, when a dispute over criminal jurisdiction arises, it must follow diplomatic channels, according to international practice. Therefore, the Vietnam Bar Federation needs to propose opinions to the Ministry of Foreign Affairs, the Ministry of Justice, and contact the Vietnamese diplomatic representative agency in Malaysia to conduct diplomatic and judicial procedures with the diplomatic agency. Next, the Federation will contact the Malaysian lawyer who has been assigned to defend Huong to agree on participating in support... This needs to be done quickly and urgently to promptly support the defense process for Huong.
First of all, Vietnamese lawyers need to equip themselves with knowledge of the Malaysian legal system and experience in handling similar cases that have been tried. We lawyers must have foreign language skills to facilitate the process of working with Malaysian lawyers and authorities. We must have the skills to collect information, documents, and evidence that are beneficial to Doan Thi Huong in Vietnam as well as in Malaysia. From there, we can provide and support Malaysian lawyers when defending the defendant.
Although not directly involved in litigation, Vietnamese lawyers need to understand the procedural order and characteristics of the trial. From there, they can discuss with Malaysian lawyers to come up with reasonable and effective support plans and strategies to avoid confusion and passivity.
If meeting the defendant, it is necessary to provide mental support, information and appropriate advice so that Huong can defend herself in court.
How is the trial in Malaysia different from Vietnam? Malaysia is a country with a legal system that is typical of the Anglo-American legal system (Common Law) because it was formerly a British colony. Therefore, Malaysia's litigation model will go through many courts at different levels. Malaysia applies a three-level court system: the lowest is the local criminal court (Magistrate Court and Sessions Court), then the High Court and Court of Appeal, and the highest level is the Federal Court. For a serious case such as murder, the local criminal court will first accept the case. The first hearing will be a preliminary hearing. The prosecutor will read the indictment to inform the defendant and the lawyer of the charges against the defendant so that they can prepare their defense. If the defendant pleads guilty, the principle of a plea bargain between the defendant and the prosecutor will be applied. If the defendant pleads not guilty, there will be a second trial to consider the legality of the evidence provided by the prosecution and the lawyer. In this trial, the defendant's lawyer will defend. The third trial is the formal jury trial. At this point, the parties will formally debate their respective points of view on the case. Based on the outcome of the debate, the court will make a decision on the defendant’s guilt and sentence. Once the High Court has made its decision, the case will automatically be sent to the Court of Appeals and the Federal Supreme Court for review. |
According to PLO
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