THE ROLE OF CIVIL LAW IN COUNTERINSURGENCY
Staff Study for Colonel George S. Prugh, 1965
Purpose: To examine the role of the Civil Law in the counterinsurgency in Vietnam and to make pertinent recommendations.
1. Why this study was made:
a. In the course of examining the legal system of Vietnam to determine where improvements could be made to make the system more effective in the prosecution of the war against the Viet Cong, it becomes apparent that a great gap exists between the work of the police and the work of the judiciary. In short, apprehension of Viet Cong becomes more efficient but the disposition of their cases is far from satisfactory. Some reflection on this specific problem leads to doubts concerning the utility of the civil code system generally as an effective tool against insurgency. At the same time it becomes apparent that the place of law in the counterinsurgency efforts is not well understood or studied, despite the fact that the establishment of a rule of law and order in the society is probably the most important goal that could be achieved.
b. That portions of this inquiry were a proper study for civilian lawyers is readily apparent but there are none in Vietnam to do it.
c. With these thoughts the study was begun by questioning leaders of the Vietnamese bench and bar, civilian and military, speaking with students, practitioners, and laymen, and collecting some of the factual data.
2. The Legal System of Vietnam:
a. French Civil Code Heritage:
The French heritage is heavy in the entire legal system, military and civilian. The older, more renowned lawyers and judges are often found to be French educated, French and non-English speaking. Professional works are often published in French. The French trappings as well as institutions are adapted by the Vietnamese, and these are superimposed over the Vietnamese society without much change. The Code Napoleon influence is naturally strong, and the civil code system, as distinguished from the common law, is employed. Trial by jury is not employed, the technique of cross-examination is severely limited, and the authority of an examining
magistrate is much enlarged as compared with US or common law practice.
b. Internal Geographical Differences:
The geographical divisions of Tonkin, Amman, and Cochin are reflected in the law in that in the Republic of Vietnam there are two distinct criminal codes, one for central Vietnam (Amman) and the other for the south (Cochin). There are as a result two distinct courts systems—one with its principal office in Hue and the other in Saigon.
(1) There is one supreme court, the Cour de Cassation, which sits in Saigon. Below this court are two courts of appeal, one at Hue and one at Saigon. Each of these courts takes appeals from courts of first instance, that is, the usual trial court consisting of a magistrate, an examining magistrate, and a prosecutor, or from courts of peace with extended jurisdiction, in which all of the foregoing functions are accomplished by one man. Below these two types of courts are justices of the peace, who handle the most minor cases. On paper the structure seems to be complete enough (See Tab A).
(2) In fact, it is only in the major cities that these courts can be depended upon to function as intended. The justices of the peace are not legally trained and their powers are dependent upon such factors as the military situation, the strength of the local military personalities, the province and district chiefs, and the national police effort in the area.
(3) These courts do not handle military offense cases, they do not handle cases of offenses against state security, and generally they do not take any cases involving military personnel regardless of the offense of which they may be charged. The courts are not themselves expected to be the law enforcers-the province or district chief will be the prime mover, with the prosecutor being some influence in this regard. These courts do handle cases involving draft dodgers and resources control offenses, however.
(4) Civil disputes may come to these courts, but there is a basic reluctance by the Vietnamese to take their differences to court. In this regard one law student was heard to remark that there is an old Vietnamese saying, "better to go to hell than to go to court". Another said that to go to court was a mark of shame, an acknowledgement that one was unable to solve his problems with his neighbor "on moral grounds". The result is that the courts themselves play a rather insignificant role in the Vietnamese society. Few people can afford legal counsel, there is a fundamental dislike of going to law, and there are remarkably few lawyers available.
It has been said that there are about 160 lawyers in Vietnam. There is probably a similar number of "judges", a term which includes not only the trial magistrates but the examining magistrates and the prosecutive staff. When this number is contrasted with, say, a large state in the United States with a similar population, the Vietnamese have about 1% of the lawyers that would be available in a comparable state in the United States. The
net result is that not only the courts but the entire legal profession plays a small part in the Vietnamese society.
What part law plays in Vietnam is essentially repressive and not desirable from the standpoint of the citizen. There are a great many laws, but these are not widely transmitted, are not well known by the people affected by them, are rarely removed from effect even when superseded, and are not readily available to the general public. In addition, there are a great many directives that have the force and effect of law which, because they are given limited distribution or are classified in nature, are not at all known to the public. This adds to a feeling of disrespect or disregard of the law. Lack of enforcement adds further to the deterioration of the respect for any Vietnamese law.
In summary, then, we find a system of law which was originally engrafted upon the society and not devised for its own institutions, a bar which lacks vigor and strength and seems primarily interested in operating on a passive "closed shop" basis, and a public which is ignorant of its own law, lacks respects for its own law, and has no real interest in its enforcement.
3. Current Role of Courts and Bar in Counterinsurgency:
a. Trial of VC Suspects:
There is very little benefit to the nation's counterinsurgency effort by the bar and bench. Since there are few lawyers available outside of the major cities there are no trials of VC suspects, accomplices, or sympathizers away from these cities. Such offenders are tried in the military tribunals, if at all.
b. Need for Counsel:
There is a need for counsel in such cases but they are only available at the trial and even there not of widespread use. Frequently suspects are held for extraordinarily long periods in detention prior to trial.
The elaborate French civil code procedures in contested cases require an inordinate delay, extending sometimes into many months, and often into years.
d. Alternative Procedures:
Because these labors are not often productive even after the heavy investment of time, there is frequent recourse to some other method. For example, suspects will often be sent to re-education centers for two year periods (renewable) without any form of trial. It is reported that in many cases the suspect is released without any punishment or, at worst, only a few months "re-education" and he thereafter shows up at his old haunts. The law plays no part in this activity in any way.
4. Role Court and Bar Could Play in Counterinsurgency:
A vigorous bench and bar could be of great value to this country in its counterinsurgency efforts.
(1) State Security Offenses:
First of all, it would provide a forum for the reasonably prompt and effective trial of persons charged with offenses against the State, and conviction of those who have committed such offenses.
(2) Resources Control:
Second, it would provide a forum for the enforcement of the resources control laws.
(3) General Law Enforcement:
Third, it would provide a service, much needed, for the general enforcement of laws.
(4) Identification with Law:
Fourth, the bench and bar could be a vehicle for identification of the individual with his country's laws by use of a jury system (now being actively considered by the Minister of Justice).
(5) Government Participation:
Fifth, the courts and lawyers could serve as a representative of the service provided by the central government.
(6) Emergence from Traditionalism:
Sixth, the courts and the law provide a method for breaking down the barrier of the traditionalist society of Vietnam.
(7) Professional aid to Government:
Seventh, the vigorous bar would provide the government with professional advice not available to it (witness the government's plight in trying to get professional help in connection with the election law drafts).
(8) New Ideas:
Eighth, injection of new ideas in the bench and bar provides an opportunity to wear away some of the dead hand of the French heritage which really drags the entire legal profession and prevents its growth. This would mean that the legal system could be by Vietnamese, of Vietnamese, and for Vietnamese.
Ninth, the bench and bar could aid the government by pointing out those statutes which are no longer to be enforced, recodifying the law into usable terms, and an orderly arrangement, and seeing to the law's dissemination. This would begin to build some respect for the law, eliminate some of the fear and start a base on which an orderly government can be built.
5. Means to Generate these Developments:
The military lawyers have been trying to inject some of the leadership needed to develop the bench and bar as indicated above. The task is too large for them to accomplish, in the light of their regularly assigned tasks. They can still be of material help but it is clear that there should be a full time civilian effort to generate the programs desired. It is estimated that three full time practitioners, devoting their entire effort to an advisory
program for the civilian bench and bar, could make a real breakthrough within two years and have their influence widely felt within five years. One of these could be located in the central part of Vietnam, spending considerable time at the law school at Hue. The second would do the same for the south, also teaching at Saigon Faculte de Droit, and the third would be the chief and coordinator with the Minister of justice and the Bench. From these three could come the plans for contractual assistance in the recodification program, the training of indigenous experts, and the handling of technical assistance from CONUS. If recruitment of civilian practitioners proves an obstacle possibly Army officers on excess leave would be available.
With the current feeling running against French influences and in favor of new ideas, there is too good an opportunity at the present, and it should not be missed. The Minister of justice is receptive to US help, there is an abiding need, the bar itself has taken far too long to make any real progress by itself in the recodification effort, and the Government seems to realize that the courts and the legal system are not being much help in the war effort. Now is the time for the US to move energetically in the law field in Vietnam.
7. Military Role:
Because of the natural tendency of Americans to inject the American concepts into their considerations when dealing with matter's of law, there is some confusion as to the relative roles of the military and civilian in the law enforcement process. In the civil law system employed in Vietnam all offenses against State security (VC type cases) are properly tried in military tribunals. This is so even though the initial police effort may be a civilian, through the national police. Resource control and draft dodger cases are tried in the civilian courts, however. There will remain a large function to be performed by US military lawyers as advisors to their RVNAF counterparts operating the military tribunal structure and prosecuting the VC. But the fact remains that the initial law work in VC cases is civilian, so there is a need for a similar effort in the civilian courts and prosecutive agencies.
That this matter be brought to the attention of the Director of USOM, with a view to encouraging his agency to establish a facility to aid and advise the RVN civilian legal institutions in order to improve their effectiveness in the bringing of law and order to Vietnam.