On the Lawyer System in the Draft Amended Constitution

(Baonghean) - The recognition of the position and role of the Lawyers' Institution in this revised Draft Constitution is very important, because the lawyers' organization and lawyers are not only the subjects performing the basic function of criminal proceedings, which is the defense function, but also aim to perform the social role of lawyers as recorded in Article 1 of the Law amending and supplementing a number of articles of the Law on Lawyers in 2006: "Professional activities of lawyers contribute to protecting justice, freedoms and democracy of citizens, rights and legitimate interests of individuals, agencies and organizations, socio-economic development, building a socialist rule-of-law state of Vietnam, a democratic, fair and civilized society".

Article 108 of the Draft Amended Constitution is designed on the basis of amending and supplementing Articles 129, 130, 131, 132 and 133 of the 1992 Constitution. In particular, Clause 7 has content related to lawyers' activities through ensuring "the right to defense of the accused and the right to protect the legitimate interests of the litigant". Compared with Article 132 of the 1992 Constitution, Clause 7 of Article 108 of the Draft expands the scope of implementation of the Court's adjudication principle, but the important content for lawyers' professional activities in Article 132 of the 1992 Constitution has not been mentioned. On this issue, we believe that if that provision is removed, the activities of lawyers will not ensure constitutionality, because the provisions on lawyers in the Constitution are an important legal basis of principles for legal bases related to the activities of lawyers institutionalized by law and sub-law documents.

On the other hand, in essence, the defense function exists independently and is subject to the prosecution function as an objective necessity of criminal proceedings. Limiting the legal profession to mainly litigation activities in criminal trials has diminished the significance of the social values ​​that the legal profession has contributed to the process of democratic development in general and judicial activities in particular.

The provisions of Clause 7, Article 108 of the Draft Amended Constitution also do not mention the possibility of relatives inviting lawyers for suspects, defendants, and litigants when stipulating that inviting lawyers or asking others to defend and protect legitimate interests is reserved only for suspects, defendants, and litigants when the Draft stipulates that only suspects, defendants, and litigants have the right to invite lawyers, which limits citizens' right to defense.

For the first time, the Draft Amended Constitution stipulates in Clause 3, Article 32: "A person who is arrested, detained, investigated, prosecuted, or tried "has the right to use legal aid from a defense attorney". This is a new institution with profound progress and humanity. However, the mechanism to ensure the implementation of this right is not clear. In reality, many rights of lawyers at various stages of the proceedings are not guaranteed, also for many different reasons. Therefore, it is necessary to expand the conditions for relatives and friends of suspects, defendants, and litigants to invite lawyers for them to ensure that lawyers are the "central figures" in judicial reform.

In practice, there are still many cases where lawyers have not been given favorable conditions to participate in protecting the legitimate rights and interests of suspects. Therefore, the Draft Amended Constitution stipulates in Clause 5, Article 108 that "the principle of litigation in court is guaranteed", which is an important step forward to facilitate lawyers in the litigation process.

With the aim of bringing the activities of lawyers on par with the development of society, we believe that it is necessary to design a new law on "lawyer organizations" in Chapter VIII of the Draft, as well as consider the compatibility between the provisions of domestic law and international commitments on people's rights in litigation activities. That will be the basis of the Constitution to create conditions for people to easily access legal services of lawyers, as well as help the professional activities of lawyers to develop smoothly, in accordance with their role and position in society.

Nguyen Trong Hai (Trong Hai & Associates Law Office)