Vietnam Legal Practice Comparative Analysis

Part 1: Introduction Legal system is different from a country to country because of differences in history, socio-political and economic conditions. In other words, the nature of legal system of a country depends on the nature of its social system established in law. (Dr. Phan Thi Lan Huong , Hanoi Law University) The diversity in the legal traditions of the different Member States stemming from different histories and cultures poses a challenge to the integration of ASEAN Law into a local law curriculum. (Bautista, 2006) Thus, in this study it is essential to present facts about Vietnam in order to determine and construct a proper feasible plan in order for ASEAN integration specifically the practice of law in the member state possible. A. Socialist Republic of Vietnam: Country Profile Officially the Socialist Republic of Vietnam (Cộng hòa Xã hội chủ nghĩa Việt Nam) with an estimated 90.3 million inhabitants as of 2012, it is the world's 13th-most-populous country, and the eighth-most-populous Asian country. Geography Vietnam is the easternmost country on the Indochina Peninsula in Southeast Asia. The country is bordered by China to the north, Laos to the northwest, Cambodia to the Southwest, and the South China Sea to the east. Its capital city has been Hanoi since the reunification of North and South Vietnam in 1976.Long and narrow on a north-south axis, Vietnam is about twice the size of Arizona. The Mekong River delta lies in the south. Economy The economy is much stronger than those of Cambodia, Laos, and other neighbouring developing countries. Like most

Communist countries around the world, there is a fine balance between allowing foreign investors and opening up the market. But in order to cope with other democratic countries. Vietnam introduced some elements of capitalism which is called đổi mới (renovation). The policy has proved highly successful, with Vietnam recording near 10% growth yearly (except for a brief interruption during the Asian economic crisis of 1997). There are also extreme restrictions on foreigners owning property or attempting to sell. It is very difficult for them to trade without negotiating 'fees'. Business can be done via local partnerships with all the attendant risks. According to government estimates Vietnam sees 3.3m tourist arrivals each year. Vietnam has a return rate of just 5% compared to Thailand’s whopping 50%. It is becoming a major manufacturing centre; it is the second biggest supplier of clothes to the US. Traditional Culture, Beliefs, and Religions Vietnam includes 54 ethnic groups which have different traditional cultures, beliefs, and religions. Buddhism is identified as the main religion in Vietnam and influenced by Confucianism. The law making and law enforcement system at present are crucial influenced by Confucianism and Buddhism religion. Vietnamese culture is said to be a rich fabric of Confucianism and Buddhism. Most notably, Confucian values brought in from China exerted a profound influence on the way of thinking and practices of a large population. They advocated traditional moral principles (such as virtue and sentiment versus rule and reason) and hierarchical practices. Legal rules were subordinated to moral and pragmatic expediencies.

Historical Timelime Small Vietnamese kingdom of Au Lac, located in the heart of the Red River valley, was founded by a line of legendary kings who had ruled over the ancient kingdom of Van Lang for thousands of years. the early peoples of the Red River delta area may have been among the first East Asians to practice agriculture, and by the 1st century BC they had achieved a relatively advanced level of Bronze Age civilization. the first ruler of Vietnam was Hung Vuong, who founded the nation in 2879 B.C. China ruled the nation then known as Nam Viet as a vassal state from 111 B.C. until the 15th century, an era of nationalistic expansion, when Cambodians were pushed out of the southern area of what is now Vietnam. Vietnam's history is one of war, colonisation and rebellion. Occupied by China no fewer than four times, the Vietnamese managed to fight off the invaders just as often. Even during the periods in history when Vietnam was independent, it was mostly a tributary state to China until the French colonisation. Vietnam's last emperors were the Nguyễn Dynasty, who ruled from their capital at Hue from 1802 to 1945, Chinese Influence In 221 BC - the Ch'in dynasty in China completed its conquest of neighbouring states and became the first to rule over a united China.In the wreckage of the empire, the Chinese commander in the south built his own kingdom of Nam Viet (South Viet). Chinese rulers attempted to integrate Vietnam politically and culturally into the Han Empire. Chinese administrators were imported to replace the local landed nobility. Political institutions patterned after the Chinese model were imposed, and Confucianism became the official ideology. Confucianism formed the basis of Vietnamese social etiquette

The Chinese language was introduced as the medium of official and literary expression, and Chinese ideographs were adopted as the written form for the Vietnamese spoken language. Chinese art, architecture, and music exercised a powerful impact on their Vietnamese counterparts. Trung sisters led an uprising against foreign rule. The revolt was briefly successful, and the older sister, Trung Trac, established herself as ruler of an independent state. Chinese armies returned to the attack, however, and in AD 43 Vietnam were reconquered. European Exploration Centuries later, the Portuguese were the first Europeans to enter the area. France established its influence early in the 19th century, and within 80 years it conquered the three regions into which the country was then divided—Cochin-China in the south, Annam in the central region, and Tonkin in the north. France exploited the succession crisis after the fall of Tự Đức to de facto colonise Vietnam after 1884.Were the French left a lasting imprint on Vietnamese cuisine. The Communist Viet Minh under the leadership of Hồ Chí Minh continued the insurgency against the French, with the last Emperor Bao Dai abdicating in 1945 and a proclamation of independence following soon after.The majority of French had left by 1945, but in 1946 they returned to continue the fight until their decisive defeat at Dien Bien Phu in 1954. The Geneva Conference partitioned the country into two at 17th parallel, with a Communist-led North and Ngo Dinh Diem declaring himself President of the Republic of Vietnam in the South. Vietnam War

US economic and military aid to South Vietnam grew through the 1960s in an attempt to bolster the Southern Vietnam government, escalating into the dispatch of 500,000 American troops in 1966. On April 30, 1975, a North Vietnamese tank drove into the South's Presidential Palace in Ho Chi Minh City and the war ended. An estimated 3 million Vietnamese and over 55 thousand Americans were killed. 1976- Present In the aftermath of the war, under Lê Duẩn's administration, the government embarked on a mass campaign of collectivization of farms and factories. This caused an economic collapse and resulted in triple-digit inflation. Reconstruction of the war-ravaged country was slow, and serious humanitarian and economic problems confronted the communist regime. Government and Politics Political Culture Vietnam is a one party authoritarian (single-party socialist republic framework) state. Vietnam's political culture has been determined by a number of factors of which communism is but the latest. The country's political tradition is one of applying borrowed ideas to indigenous conditions. In many ways, Marxism-Leninism simply represents a new language in which to express old but consistent cultural orientations and inclinations. Vietnam's political processes, therefore, incorporate as much from the national mythology as from the pragmatic concerns engendered by current issues. President

The President is the Head of State wherein executive power is exercised by the government and the President of Vietnam. He is elected by the National Assembly which He has a 5 years term and is not limited by the Constitution to a maximum tenure. Vice President is proposed by the President and elected by the National Assembly from among NA deputies; The Vice President assists the President and may be authorized by the President to do some tasks or functions as the acting President. The Prime Minister Is the Head of Government which wields the most authority in government. Legislative power is vested in the National Assembly of Vietnam. The government (Vietnamese: Chính phủ), the main executive state power of Vietnam, is headed by the Prime Minister. The Prime Minister, who has several Deputy Prime Ministers and several ministers in charge of particular activities.The government is a unified administration responsible for the implementation of political, economic, cultural, social, national defence, security and external activities of the state.The Prime Minister of the Socialist Republic is elected or dismissed by the National Assembly, at the request of the president. The Deputy Prime Ministers are approved by the National Assembly at the Prime Minister’s request. They function as the assistants to the Prime Minister and may be authorized by the Prime Minister in the case of the latter’s absence.Ministers and heads of the ministerial-level agencies are approved by the National Assembly at the Prime Minister’s proposal. They are in charge of State management over their assigned branches or affairs.

National Assembly

The Vietnamese legislature is the unicameral. The parliament adopted the current Constitution of Vietnam, its fourth, on 15 April 1992, and it has been amended once since then. The National Assembly has 500 members, elected by popular vote to serve four-year terms. The legislature is, according to the constitution, the highest organ of the state. Deputies (members) of the National Assembly are elected through secret ballots in democratic elections which are held every fifth year. Standing Committee consists of the chairman, deputy chairmen and other members; these members are elected by the National Assembly. Standing Committee members cannot simultaneously be members of the Government. Members work on a full-time basis, and their terms of office correspond with the term of the National Assembly. There are seven committees of the National Assembly. Committee membership is determined by the National Assembly. They are responsible for the studying and examination of bills, legislative initiatives, drafts of ordinances and other drafts of legal documents and reports assigned by the National Assembly or the Standing Committee. The committees provide the National Assembly and its Standing Committee with their opinions on the legislative programme. The committees supervise and conduct investigations within their respective competency and exercise powers which are stipulated by law. Judiciary The Vietnamese judicial system is based upon Socialist legality. The Supreme People's Court (Vietnamese: Tòa án Nhân dân Tối cao) is the highest court of appeal in Vietnam. The Supreme People’s Court consists of the Chief Judge, Deputy Chief Judge, jurors and court secretaries.

The structure: Council of Judges, Commission of Judges, Central Military Court, Criminal Court, Civil Court, Appeal Court, and assisting staff. The National Assembly elects and dismisses the Chief Judge of the Supreme People’s Court. The State President nominates/dismisses Deputy Chief Judge and judges at the Chief Judge’s request. The People’s Jurors are introduced by the Central Committee of the Việt Nam Fatherland Front and appointed by the National Assembly Standing Committee. Main operating principles of courts: during the hearings, the judges and jurors are independent and only obey the laws. Justice and democracy are ensured by the open hearing process, in which jurors play an essential role; defendants have the right to defend themselves, or to hire lawyers. They also have the right to use their native languages in courts. There are other specialised courts in Vietnam, including the Central Military Court, the Criminal Court, the Civil Court and the Appeal Court. The Supreme People's Procuracy observes the implementation of state organs and makes sure that Vietnamese citizens follow the law. Legal Framework The current constitution was adopted on 15 April 1992 by the National Assembly of Vietnam. There have been three other constitutions in Vietnamese history: the 1946, 1959 and 1980 constitutions. The current constitution has been amended once, during the 10th session of the National Assembly on 25 December 2001. The Communist Party of Vietnam, the leading non-State organ, operates in accordance with the laws. Government powers in Vietnam

are divided into legislative, executive and judiciary powers. Vietnam's legal system is based upon socialist legality according to Article 12 of the constitution. Electoral Process Article 6 of the Constitution states that "The people make use of state power through the agency of the National Assembly and the People's Councils, which represent the will and aspirations of the people, are elected by them and responsible to them". Deputies (members) of the National Assembly are directly elected on a democratic basis through secret ballots. All citizens who are 18 or older, regardless of ethnic group, gender, social position, belief, religion, level of education, occupation or length of residency have the right to vote, the exceptions being the mentally disabled and those people who have been deprived of the right to vote by law. People aged 21 or older have the right to stand as a candidate at elections. Three election commissions have been established to manage elections; at the central level is the Election Council, at the provincial level and in centrally-run cities the Election Committee is responsible for election monitoring and the Election Commission is responsible for election monitoring at constituencies. Local Government Provinces and municipalities are subdivided into towns, districts and villages. Provinces and municipalities are centrally controlled by the national government. Towns, districts and villages are locally accountable to some degree through elected people’s councils. Certain cities and provinces are under direct control of the central government.

The provinces are divided into districts, provincial cities and towns; cities under direct rule are divided into towns, urban and rural districts. In turn, the district is divided into communes and townlets. In the provinces, the People's Council is the "local organ of State power", and it represents the "aspirations, and mastery of the people". 58 provinces, There are also five municipalities, which are administratively on the same level as provinces. Foreign Policy and Foreign Relations Vietnam (now Socialist Republic of Vietnam) has diplomatic relationship with 180 nations all over the world, included permanent members of United Nations Security Council. Reconstruction of the war-ravaged country was slow, and serious humanitarian and economic problems confronted the communist regime. Vietnam's foreign policy: Implement consistently the foreign policy line of independence, self-reliance, peace, cooperation and development; the foreign policy of openness and diversification and multilateralization of international relations. Proactively and actively engage in international economic integration while expanding international cooperation in other fields. Vietnam is a friend and reliable partner of all countries in the international community, actively taking part in international and regional cooperation processes. Deepen, stabilize and sustain the established international relations. Develop relations with countries and territories in the world and international organizations in the principles of respect for each other's independence, sovereignty and territorial integrity, noninterference in each other's international affairs; non-use or threat of force; settlement of disagreements and disputes by means of peaceful negotiations; mutual respect, equality and mutual benefit.

B. OVERVIEW OF THE VIETNAMESE LEGAL SYSTEM Vietnamese legal philosophy and development Vietnam is a socialist country under the leading of Communist Party; therefore, the current legal system of Vietnam has its own history and tradition (Institute of Developing Economies, 2003). The presentation of Legal philosophy is essential in determining how Vietnam legal system works and how it would fit in with other ASEAN nations. In general, Vietnamese legal ideologies were under influenced by various legal ideologies and can be divided into four periods such as: feudal legal system; French colonialist; Soviet Union legal traditional; and the legal system in period of integration and globalization. However, this study only focuses on the legal system from 1975 up to present because the current legal system of Vietnam has significantly changed since introducing Doimoi (means “renovation” which was previously discussed in the previous sub part of this study) in 1986. The current legal system of Vietnam is based on the ideologies of the former Soviet Union. Soviet’s legal system is based on the civil law system together with modifications from Marxist-Leninist ideology. Vietnam relied deeply on the support of Soviet Union during the war and after reunification in 1975; therefore, the 1980 Constitution was drafted basing on the constitution of Soviet Union as a significant example for reference.

The 1980 Constitution was a mirror image of a Soviet Union style constitution. It explicitly stated, “The Socialist Republic of Vietnam is a state of proletarian dictatorship” (Art. 2). Further, it speaks of the “collective mastery” of the working class, the collective peasantry and the socialist intelligentsia (Art. 3). For the first time the Constitution contained a provision on the role of the Communist Party of Vietnam as the only political party (Art. 4). The party was only limited insofar as “its organizations [were to] operate within the framework of the Constitution” (Art. 4, Par. 3). The legal system of Vietnam was formed gradually under the leadership of Communist Party and democratic centralism principle. The legal system is formed under the principle of socialist legality (phap che xa hoi chu nghia) and democratic centralism (tap trung dan chu). These principles shape the nature of legislation in Vietnam. Although National Assembly is vested legislative power but executive organs have played important role in legislation. Hence, sources of law and interpretation are different from rule of law state. “The legal ideologies that provide the foundation for the establishment and operation of Vietnamese legal institutions significantly differ from those of rule-of-law systems.” Under democratic central principle, there is no separation of state power. All three state braches have involved in legislation. Hence, the concept of law refers to

various types of legislation issued by competent agencies in written forms. In addition, Communist Party has played leading role in all aspects therefore legal system is under influences of Party’s policies. Therefore, law cannot conflict with Party’s policies. It becomes one of a condition of legal validity in Vietnam that is also different from other countries. Socio-economic conditions have affected significantly on legal system. Legal system must respond to the changes of socio-economic conditions. The 1992 Constitution replaced for the 1980 Constitution with the main focus on the open market under socialist oriented economy. The rule of law, clearly distribution of state functions (legislative, executive and judicial functions) was mentioned as the target of legal reform in Vietnam. In 1995, Vietnam aimed at bringing national legal system up to level required by WTO member. Therefore, all legal sectors have been reformed basing on the international trade rules. For example, Vietnam established the Administrative Court was established in 1996 and adopted Law on Administrative Complain and Denunciation in 1998 in order to meet a requirement of WTO. Communist Party issued Resolution No 48: Strategy for the Development and Improvement of Vietnam’s Legal System to the Year 2010 and Direction for the Period up to 2020. This

strategy calls for a modern transition to the rule of law and a market-based economy, and lays out a strategy to develop Vietnam’s laws as well as improve their application and execution by 2020. In progress of building rule of law state and democratic society, especially since became a middle-income country. Vietnam introduced a Master Plan on Administrative Reform period 2011-2013 with the aim at building up an effective, efficient, transparent, and strong administrative system from central to local level. Hence, the 1992 Constitution was amended in 2013 as a significant effort in reforming process. Currently, Vietnam has carried out reviewing all legal documents and has planned to promulgate new Laws in order to ensure that legal documents comply with the 2013 Constitution. Sources of Law Discussing the sources of law of Vietnam in this study plays a crucial factor in building a plan that would make the ASEAN integration specifically the practice of law in ASEAN nations feasible. Sources of law in Vietnam is defined as all fundamental/basic elements used by authorized entities for developing, promulgating, interpreting a laws as well as for applying in dealing with a specific case in practices. Sources of law are divided into two major types: 1) Party’s Policy; Economic Policies; and Legal Phylosophy (nguon noi dung) are fundamental elements shape the nature of legal system (refers

to natural sources of law); 2) general legal principles; the written legal documents; international treaties; customary regulations; and judicial decisions (nguon hon hop) are fundamental elements for interpretation and application of laws in practice (refers to statutory sources of law). Legal documents are the main sources of law: Vietnam has a civil law system; therefore sources of law include mainly written laws. Law refers to various types of legislation; therefore sources of law included many types of legal document issued by competent agencies as prescribed by Law on Laws 2008. The sources of law include the following documents (Article 2, Law on Laws 2008) 1. Constitution, laws and resolutions of the National Assembly. 2. Ordinances and resolutions of the Standing Committee of the National Assembly. 3.

Orders and decisions of the State President.

4.

Decrees of the Government.

5.

Decisions of the Prime Minister.

6. Resolutions of the Justices’ Council of the Supreme People’s Court and circulars of the Chief Justice of the Supreme People’s Court. 7. Circulars of the President of the Supreme People’s Procuracy. 8. Circulars of Ministers or Heads of Ministry-equivalent Agencies. 9.

Decisions of the State Auditor General.

10. Joint resolutions of the Standing Committee of the National Assembly or the Government and the central offices of socio-political organizations. 11. Joint circulars of the Chief Justice of the Supreme People’s Court and the President of the Supreme People’s Procuracy; those of Ministers or Heads of Ministry-equivalent Agencies and the Chief Justice of the Supreme People’s Court, the President of the Supreme People’s Procuracy; those of Ministers or Heads of Ministry-equivalent Agencies. 12. Legal documents of People’s Councils and People’s Committees. The sources of law include 12 legal documents which are formed hierarchical legal validity in principle. The Constitution has the highest legal validity in national legal system. All legal documents must be consistent with Constitution and legal documents issued by the higher state organs. If a legal document issued by the lower state organ is inconsistent with Constitution and legal document issued by higher state organs, the higher state organ will hold power to suspend it. Judicial precedents In principle, judicial precedents are not defined as a source of law. However, Supreme Court has published material on the way it has dealt with cases and involved in training judges in interpreting laws. Supreme Court holds power to issue circular for providing guidelines on implementation of particular law for lower court. This circular is defined as a source of law. “There is no doctrine of binding precedent, although as a matter of practice, the People’s Courts must follow the Supreme Court’s guidelines produced in the form of “resolutions” or

“conclusion reports”, which have binding effect upon not only inferior courts, but also government authorities”.

International treaties/Conventions To be a source of law, international treaties/conventions must be ratified by Vietnam. International treaties/conventions become sources of law if they are applied directly or indirectly in dealing with specific case in Vietnam. In general, Vietnam often interprets international treaties into domestic laws as a way of implementation international treaties in Vietnam. For example, Law on anti-corruption of Vietnam in 2009 interprets regulations of UNCAC. Customary regulations In principle, customary regulation is not a source of law. However, customary regulations will be adopted as a source of law if they are used to deal with specific case in reality. Vietnam defines customary regulations as a source of law in some legal documents. For example, Article 3, Civil Code defines that: “In cases where it is neither provided for by law nor agreed upon by the parties, customary regulations can be applied; if customary regulations are unavailable, analogy of law may be applied. Customary regulations and analogy of law must not contravene the principles provided in this Code” In brief, sources of law in Vietnam include mainly legal documents issued by competent agencies as prescribed by Law on Laws 2008. However, legal system still remains many problems such as contradictory, loophole, overlap because of lacking an effective channel for constitutional review. Government and Ministries hold power to interpret Laws adopted by National Assembly and have played important role in legislation. This mechanism ensures legal system respond

quickly to the changes of socio-economy but also raises many challenges to process of reforming legal system in Vietnam. The court system The court system of Vietnam is hierarchical including the Supreme People’s Court, Provincial People’s Courts and District People’s Courts. Constitution 2013, Article 102 provides that: 1. The people’s courts are the judicial organ of the Socialist Republic of Vietnam, exercising the judicial power. 2. The people’s courts comprise the Supreme People's Court and other courts established by law. 3. The people’s courts are responsible for the protection of justice, human rights, citizen’s rights, socialist regime, interests of the State, and legal rights and interests of organizations and individuals. The Supreme People's Court is the highest judicial organ of the Socialist Republic of Vietnam. The term of the President of the Supreme People’s Court is consistent with the term of the National Assembly (5 years). The President of the Supreme People's Court is responsible and makes his reports to the National Assembly and, when the latter is not in session, to its Standing Committee and to the State President. Vietnam has six types of courts namely the Administrative, Labor, Civil, Criminal, and Economic Courts; the Military Court is established for dealing with military crimes. The Supreme People’s Court holds power to re-adjudicate appealed cases that have been sent from Provincial Court. Provincial Court is established in each province of Vietnam (currently Vietnam has 63 provincial court). The provincial court deals with appeal for District cases and other cases as prescribed by law. District Court is almost established in every district. District court initially deals with civil, economic, labor, administrative and

criminal cases (first-instance cases). District court include one chief justice, one or two deputy chief justice; judges, jurors, and clerks. Vietnam adopts the system of two-instance trials. If a party does not agree with judgment of the first-instance court, she/he may appeal to the second-instance court for further trial. The decision of the second instance court is the final and must be enforced. The jurisdiction of court is determined by territory, level of trial and the nature of case in question. Chief Justice of the Supreme People’s Court exercises the power to appoint judges of the lower courts based on lists of preferred appointment submitted by Judicial Selection Council at the relevant level (Article 27, 28 Ordinance on Judges and Jurors of People’s Court 2002).

Part 2: Requirements for the admission to the bar of Vietnam

Legal training is also influenced by legal traditional and socio-political conditions. After reunification, the first legal training institution was established therefore Vietnam does not have long tradition of law teaching. During centrally-planned economy, legal training was influenced significantly by Soviet thinking, which is considered as irrelevant to new socio-economic conditions in Vietnam. (Huong) Lawyers Law on Lawyers of Vietnam defines that: “Lawyers are persons who fully the meet the criteria and conditions for professional practice under the provisions of this Law and provide legal services at the request of individuals, agencies or organizations (hereinafter collectively referred to as clients)” (Article 2). Law on Lawyer was adopted in 2006, which provided working conditions of lawyers in Vietnam. This law was revised in 2012. Criteria of lawyers are defined by Article 10 (Law on Lawyers 2006) as follows: Article 10. - Criteria of lawyers Vietnamese citizens who are loyal to the Fatherland, observe the Constitution and law, have good moral qualities, possess a law bachelor diploma, have been trained in legal profession, have gone through the probation of legal profession and have good health for law practice may become lawyers. Article 11. - Conditions for law practice A person who meets all the criteria specified in Article 10 of this Law, if wishing to practice law, must possess a law practice certificate and join a bar association.

I.

Vietnamese citizens Who are Vietnamese citizens? These provisions of the Law on the Vietnamese Nationality will enumerate who are Vietnamese citizens are the following: Article I “Vietnamese nationality reflects the cohesive relationship between individuals and the State of the Socialist Republic of Vietnam, giving rise to rights and obligations of Vietnamese citizens toward the State and rights and responsibilities of the State of the Socialist Republic of Vietnam toward Vietnamese citizens.” Article 4 “The State of the Socialist Republic of Vietnam recognizes that Vietnamese citizens have a single nationality, Vietnamese nationality, unless it is otherwise provided for by this Law.” Article 5 Paragraph (1) “Persons who hold Vietnamese nationality are Vietnamese citizens.” Article 13. Persons having Vietnamese nationality 1. Persons having Vietnamese nationality include those who have Vietnamese nationality by the effective date of this Law and those who acquire Vietnamese nationality under this Law. 2. Overseas Vietnamese who have not yet lost Vietnamese nationality as prescribed by Vietnamese law before the effective date of this Law may retain their Vietnamese nationality and within 5 years after the effective date of this Law, shall make registration with overseas Vietnamese representative missions to retain Vietnamese nationality.

The Government shall specify the order of and procedures for registration for retention of Vietnamese nationality. Article 14. Grounds for identification of persons having Vietnamese nationality A person is determined to have Vietnamese nationality on one of the following grounds: 1. By birth, as prescribed in Articles 15, 16 and 17 of this Law; Article 15 “A child born inside or outside the Vietnamese territory whose parents, at the time of his/her birth, are both Vietnamese citizens has Vietnamese nationality.” Article 16. “1. A child born inside or outside the Vietnamese territory either of whose parents is a Vietnamese citizen and the other is a stateless person at the time of his/her birth or whose mother, at the time of his/her birth, is a Vietnamese citizen and whose father is unknown, has Vietnamese nationality. 2.A child either of whose parents is a Vietnamese citizen at the time of his/her birth and the other is a foreign national has the Vietnamese nationality if so agreed in writing by his/her parents at the time of birth registration. In case a child is born in the Vietnamese territory but his/her parents fail to reach an agreement on the selection of his/her nationality, the child has Vietnamese nationality.” Article 17. “1. A child born in the Vietnamese territory whose parents, at the time of his/her birth, are both stateless persons with a permanent residence in Vietnam has Vietnamese nationality.

2. A child born in the Vietnamese territory whose mother, at the time of his/her birth, is a stateless person with a permanent residence in Vietnam and whose father is unknown, has Vietnamese nationality.” 2. Having been naturalized in Vietnam; 3. Having Vietnamese nationality restored; 4. on the grounds defined in Articles 18, 35 and 37 of this Law; Article 18. The nationality of abandoned newborns and children found in the Vietnamese territory 1. Abandoned newborns and children found in the Vietnamese territory whose parents are unknown, have Vietnamese nationality. 2. A child specified in Clause 1 of this Article who is aged under full 15 years will no longer have Vietnamese nationality in the following cases: a/ He/she has found his/her parents who hold single foreign nationality; b/ He/she has found his/her mother or father who holds single foreign nationality. Article 35. Nationality of minor children upon their parents’ naturalization in Vietnam, restoration or renunciation of Vietnamese nationality 1. When the nationality of the parents changes as a results of naturalization in Vietnam, restoration or renunciation of Vietnamese nationality, the nationality of the minor child who is living with his/her parents will be changed accordingly. 2. When only one parent is permitted for naturalization in Vietnam, restoration or renunciation of Vietnamese nationality,

the minor child who is living with that person will acquire Vietnamese nationality or lose his/her Vietnamese nationality, if so agreed in writing by his/her parents. In case a parent is permitted for naturalization in Vietnam or restoration of Vietnamese nationality, the minor child who is living with that person will also acquire Vietnamese nationality, if his/her parents fail to reach a written agreement on the retention of their child’s foreign nationality. 3. Change of the nationality of persons aged between full 15 and under 18 years under Clauses 1 and 2, this Article, is subject to these persons’ consent. Article 37. Nationality of adopted minor children 1. A child who is a Vietnamese citizen and adopted by a foreigner will retain his/her Vietnamese nationality. 2. A child who is a foreign national and adopted by a Vietnamese citizen will acquire Vietnamese nationality from the date a competent Vietnamese agency approves the adoption. 3. A child who is a foreign national and adopted by parents one of whom is a Vietnamese citizen and the other is a foreign national may be permitted for naturalization in Vietnam according to the application for Vietnamese nationality filed by his/ her adoptive parents and is exempt from conditions prescribed in Clause 1, Article 19 of this Law. 4. Change of the nationality of adopted children aged between full 15 and under 18 years is subject to these persons’ consent. 5. On the grounds defined in treaties to which the Socialist Republic of Vietnam is a contracting party. Compared to the requirements of the Philippines there is no such provision like Article 14 paragraph 5 on the Law of Nationality of Vietnam which can consider other foreign persons to

acquire Vietnamese nationality. Given that they are Vietnamese nationals they are also Vietnamese citizen because of the Nationality Principle which makes Vietnamese nationals to be a Vietnamese citizen also.

II. III.

Demonstrate loyalty to the motherland and the Constitution of the Socialist Republic of Vietnam; Observe the Constitution and law; Requirement two and three is the same in the Philippines where a lawyer’s obligation is to uphold the constitution which is the fundamental law of the land.

IV.

Have good moral qualities; Requirement 4 is also a requirement in the admission to the Bar in the Philippines.

V.

Possess a law bachelor degree; Requirement 5 is also present in the requirements for admission to the BAR in the Philippines because legal education is very vital in the practice of law.

VI.

Have been trained in legal profession; Article 12 - Lawyer training (Law on Lawyers of Vietnam) 1. A person who possesses a law bachelor diploma may register to participate in a lawyer-training course at a lawyer-training establishment. 2. The lawyer-training duration is six months.

A person who completes the lawyer-training program shall be granted a graduation certificate by the concerned lawyer-training establishment. 3. The Justice Minister shall provide a framework program for lawyer training and the recognition of lawyer training overseas. 4. The Government shall provide for lawyer-training establishments. VII.

Have gone through the probation of legal profession; Article 14- Law practice probation (Law on Lawyers) 1. Persons who possess lawyer-training certificates may take probation at law-practicing organizations. Unless it is reduced according to the provisions of Clauses 2 and 3, Article 16 of this Law, the law practice probation lasts 18 months. The probation duration is counted from the date of probation registration at a bar association. Law-practicing organizations shall probationers in the practice of law.

assign

lawyers

to

guide

2. Law probationers shall register their probation with the bar associations of localities where law-practicing organizations in which they are taking probation are based. Bar associations shall oversee the observance of the Regulation on law practice probation. 3. Law probationers may assist instructing lawyers in professional activities; must neither accept nor provide legal services for clients. 4. Upon the expiration of the probation period, instructing lawyers shall give written comments on probation results of probationers and

send those comments to the bar associations where they register their probation. 5. The law-practice probation shall comply with the relevant Regulation promulgated jointly by the Justice Ministry and the national lawyers' organization.

Requirement five and six are not required in the Philippines because our legal education and preparation focuses in passing the Bar which connotes that if you passed the BAR you have all the faculties needed in order for you to competently practice Law. VIII.

Have good health for law practice

In general, to practice law, lawyers must be licensed by Bar Association if he/she meets the following conditions:  A lawyer training course lasting 12 months which is certificated by the Vietnam Judicial Academy;  A 12 month practical training at any law firm;  They must pass the national exams and get the lawyer practicing certificate issued by the Ministry of Justice. Article 17. - Grant of law practice certificates 1. Persons who pass law practice-probation tests shall file dossiers of application for law practice certificates with the managing boards of the bar associations where they register their probation. A dossier of application for such a certificate comprises: a/ An application for a law practice certificate; b/ A curriculum vitae; c/ A judicial record card;

d/ A copy of the law bachelor or master diploma; e/ A copy of the lawyer-training certificate or paper evidencing the lawyer-training exemption according to the provisions of Clause 4, Article 13 of this Law; f/ A copy of the law practice-probation certificate; g/ A health certificate. Within 7 working days after receiving a complete dossier, the managing board of the concerned bar association shall send, together with the dossier, a written proposal for the grant of a law practice certificate to the Justice Ministry. 2. Persons entitled to lawyer-training and law practice probation exemption shall file dossiers of application for law practice certificates with the Justice Ministry. Such a dossier comprises: a/ An application for a law practice certificate; b/ A curriculum vitae; c/ A judicial record card; d/ A copy of the law bachelor, master or doctorate diploma; e/ Papers evidencing the lawyer-training exemption under the provisions of Clauses 1, 2 and 3, Article 13 and law practice probation exemption under the provisions of Clause 1, Article 16, of this Law; f/ A health certificate. 3. Within 30 days after receiving complete dossiers of application for law practice certificates, the Justice Minister shall grant such certificates; in case of refusal, he/she shall notify the applicants and

the managing boards of concerned bar associations thereof in writing, clearly stating the reasons therefor. If their applications for law practice certificates are rejected, the applicants may lodge complaints in accordance with law. 4. Persons falling in one of the following cases are not granted law practice certificates: a/ Working as cadres, officials or civil servants; as officers, professional personnel or defense workers agencies or units of the people's army; as commanding or professional officers or noncommissioned officers in agencies or units of the people's security forces; b/ Not permanently residing in Vietnam; c/ Being examined for penal liability; having been sentenced for unintentional crimes or less serious intentional crimes and their criminal records have not yet been remitted; having been sentenced for serious, very serious or particularly serious intentional crimes; d/ Being confined to a medical treatment establishment or reformatory as an administrative sanctioning measure or to administrative probation; e/ Having lost their civil act capacity or having a restricted civil act capacity; f/ The persons defined at Point a of this Clause who have been dismissed for under three years, counting from the date the dismissal decision takes effect.  The Bar association of the area in which the lawyer practices issues a license to the member.

The Vietnamese Lawyers Association (Vietnamese Lawyers Federation) established in 2009 as the national Bar Association which includes local Bar Association established at each province. Provincial Bar Associations are established after consideration of Ministry of Justice and a decision by People’s Committee. Ministry of Justice holds power to regulate the legal profession of lawyers in Vietnam. Ministry of Justice has a specialized department for administration of Bar Associations. Vietnam has a relatively young structural organization of its legislature and legal profession. Lawyers were not considered to be 'professionals' until the last decade. However, after the implementation of the Constitution and a more rigid legal hierarchy, they have been afforded a higher profile within Vietnam. The raised profile of lawyers within Vietnam has emphasized their role on a global scale. This is evident in Vietnam's accession to the World Trade Organization, which has in turn encouraged investment in the country. The continuing development of the legal system and profession in Vietnam will be interesting to observe. (http://www.ibanet.org/) Foreigner’s Practice of Law Unlike in the Philippines Foreign Practice of Law is allowed. When Vietnam joined the World Trade Organization in 2007 and has made specific commitments for legal services. Provided they register with the Ministry of Justice, foreign law firms can operate in Vietnam in the following ways:    

As a branch of foreign lawyers' organization As a subsidiary of a foreign lawyers' organization As a foreign law firm As a partnership between a foreign lawyers' organization and a Vietnamese law partnership

Note that foreign law firms can advise on Vietnamese law only if they employ qualified local lawyers.

Foreign Lawyers can practice in Vietnam by:  Submitting a written account of request for a Practising License in Vietnam to Ministry of Justice.  The account must include certification that they are qualified in a foreign jurisdiction, that they belong to a foreign lawyer’s organization designated to practice the legal profession in Viet Nam or papers certifying recruitment by a Vietnam-based foreign lawyer’s profession-practicing organization.  After receiving these documents and the required fee, the Ministry of Justice can grant the Practicing License in Vietnam to the foreign lawyer. If the Ministry of Justice refuses to do so, it is required to give notice in writing.

Part 3: Conclusion – Recommendations for ASEAN integration between the Philippines and Vietnam to allow cross-border practice in the ASEAN region.

The first part of this study has established how rich and different the socio-cultural and political landscape of Vietnam. Furthermore, the second part of this study has laid down the requirements for the admission to the bar of Vietnam and compared to the requirements in Philippines. Now in this last part of this study the researcher will present a feasible plan in order for the ASEAN integration specifically the cross-border practice of law is practicable. The plan has to be developed in sufficient detail to demonstrate that it can meet the alleged needs and that it can produce the claimed advantages.

I.

Agency The agency that must be responsible for the carrying out of the ASEAN integration specifically the cross-border practice of law between Vietnam and the Philippines are their respective legislative bodies which will ratify treaties that would be created in the process and also amend their domestic laws which may in conflict with proposed plan. And also those bodies which has regulatory authority over the Practice of Law in the Philippines and in Vietnam.

II.

Action Plan Article 5 Paragraph 2 of the ASEAN Charter it provides that: “Member States shall take all necessary measures, including the enactment of appropriate domestic legislation, to effectively implement the provisions of this Charter and to comply with all obligations of membership.”

However, there are areas of concerns that would present the conflicting issues in relation to the integration of ASEAN nations specifically the cross-border practice of law in the ASEAN region and they are as follows: Practice of Law in the Philippines is exclusive for Philippine citizens only. Section 5[5], Article VIII of the 1987 Philippine Constitution which places the exclusive regulatory authority upon the Supreme Court on all matters pertaining to pleadings and practice of law in Philippine courts. In one of the lectures by Dean Joan S. Largo of University of San Carlos College of Governance and Law stated that “This provision of the Philippine constitution which places the exclusive regulatory authority upon the Supreme Court on all matters pertaining to pleadings and practice of law in Philippine courts, and the fact that the Supreme Court is not showing any indication that the legal profession will be opened up to non-Filipinos, no matter how limited the practice may be, it can be said with certainty that the legal profession will remain to be the Filipino lawyers’ exclusive turf.” Furthermore she stated that “The ASEAN Integration of 2015 is expected to present ASEAN and its member countries as investment destination of the world. With the establishment of the ASEAN Economic Blueprint, ASEAN will be viewed as a single market and production base. The borders will soon be opened, and the arena where Filipino lawyers will be applying their lawyering skills will be changed. With the free movement of business and people, the profile of the clients of the Filipino lawyers will change. Change has come and will keep on coming, and it is quite absurd to continue believing that the legal profession will be immune to such change.”

As discussed in the previous part of this study Vietnam has allowed foreign practice of law in their country. Thus with the mandate of the ASEAN charter and the growing demands of ASEAN integration there is a need the Supreme as the sole authority on the practice of law in the Philippines should amend the requirements in the admission into the Bar. Furthermore, if there are other constitutional provisions or laws which may be in conflict to the ASEAN integration specifically the cross-border practice of Law will be amended or repealed. A. Citizenship Citizenship is a very essential requirement in the admission to the Bar in Philippines. Citizenship requirement created exclusivity of the practice of law for Filipinos only. This create a problem in the ASEAN integration where in foreigners cannot practice law since there is such requirement that impedes them to qualify. Compared to Vietnam where a person can acquire citizenship on the grounds provided by a treaty wherein Vietnam contracts into. Citizenship requirement should be scrape-off from the requirements for the Practice of Law in both countries. Since we are going into integration citizenship should yield in the aspect of importance over competency of lawyers in the ASEAN community. ASEAN should have no borders and putting a citizenship requirement beats the purpose of ASEAN integration.

B. Standardization of Legal Education in the ASEAN

As discussed in the previous part, legal education requirement Vietnam and the Philippines has a substantial difference in terms of Legal Practice preparation. Thus, in order to insure competence in the cross-border practice of Law in the ASEAN. Legal education must be standardized. Wherein, the ASEAN must set standardize curriculums and the same legal education techniques that are thought in Law schools. Furthermore, The ASEAN must set standardize legal training requirement such as internships and legal probations in the case of Vietnam. C. BAR exam The BAR exam is the gate pass for every lawyer in order for them to practice law. It is undeniable that every state has different laws. Thus, if a person would like to practice as a local lawyer He must take the state BAR of the country He would like to practice into.

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