Consider adding the principle of give and take

Discussing at the Hall about the draft Law on Judicial Assistance in Civil Matters, there were opinions suggesting adding the principle of reciprocity to create conditions for countries that have not signed international treaties with each other to still be able to cooperate in various fields.

Respect and protect human rights and civil rights

According to National Assembly Deputy Thach Phuoc Binh ( Vinh Long ), the draft Law on Judicial Assistance in Civil Matters has inherited the basic principles of judicial assistance but does not have clear regulations on the protection of personal data, privacy rights, personal rights, women and children according to the 2013 Constitution and Decree No. 13/2023/ND-CP of the Government on the protection of personal data.

National Assembly Deputy Thach Phuoc Binh (Vinh Long) speaks. Photo: Ho Long

The delegate said that civil judicial assistance activities often involve personal information such as household registration, property, inheritance, and without this provision, human rights can easily be violated. European countries, Japan, and South Korea all consider this a mandatory principle.

From there, delegate Thach Phuoc Binh proposed to add the content of civil judicial assistance activities to ensure, respect and protect human rights, civil rights, privacy rights, personal data protection, with special attention to protecting women, children, people with disabilities and other vulnerable groups.

Also related to the principle of judicial assistance, National Assembly Deputy Nguyen Minh Tam ( Quang Tri ) proposed considering adding the principle of "give and take".

According to the delegate, the principle of reciprocity was once recorded in Clause 2, Article 4 of the 2007 Law on Judicial Assistance. The Draft Law does not record this principle, while the principle of "reciprocity" is a basic and important principle in international relations, recognized by the majority of countries in the world , and recorded in many current international treaties.

“This principle also ensures that countries that have not signed international treaties with each other can still cooperate in various fields, based on give and take,” the delegate noted.

National Assembly Delegate Nguyen Minh Tam (Quang Tri) speaks. Photo: Ho Long

In the Report on explanation, acceptance and revision of the draft Law on Mutual Legal Assistance in Civil Matters, it is stated that the draft Law does not directly stipulate the principle of reciprocity in mutual legal assistance in civil matters, but takes a flexible approach by adding a provision: in case a request for mutual legal assistance in civil matters from a foreign country can be refused when there is a basis to believe that the foreign side does not cooperate in implementing Vietnam's request for mutual legal assistance in civil matters (Point a, Clause 2, Article 27).

The above provisions create a legal basis for competent authorities of Vietnam to consider and decide on the flexible application of the principle of "give and take" in implementing civil judicial assistance with foreign countries, to maximally protect the legitimate rights and interests of Vietnamese agencies, organizations and individuals, and to promote international cooperation in this field, based on each specific case.

However, delegate Nguyen Minh Tam said that it is still necessary to legalize the principle of "give and take" in Article 5 of the draft Law, from which there will be a basis to apply point a, clause 2, Article 27 of the draft Law.

Annually, the Government reports to the National Assembly on the results of civil judicial assistance.

Regarding the monitoring and post-audit mechanism, delegate Thach Phuoc Binh said that the draft Law does not yet stipulate independent monitoring and periodic reporting, leading to scattered monitoring and difficulty in evaluating effectiveness.

From there, the delegates proposed to add the following content: The Ministry of Justice is responsible for preparing an annual report on civil judicial assistance activities and sending it to the Committee on Law and Justice before March 31 every year. The Committee on Law and Justice organizes thematic supervision every two years. The State Audit and the Government Inspectorate conduct audits and inspections of financial management and the effectiveness of civil judicial assistance.

The delegate emphasized that the above proposals stem from the practical implementation of the 2007 Law on Judicial Assistance and our country's experience in international cooperation. If adopted and institutionalized in this law, it will help create a modern, synchronous and feasible legal framework, contributing to improving the effectiveness of protecting the legitimate rights and interests of Vietnamese citizens abroad as well as foreigners in our country.

Chairman of the Law and Justice Committee Hoang Thanh Tung presented a summary of the Reports on explanation, acceptance and revision of the four drafts: Law on Extradition; Law on Transfer of Persons Serving Prison Sentences; Law on Mutual Legal Assistance in Criminal Matters; Law on Mutual Legal Assistance in Civil Matters. Photo: Pham Thang

At the National Assembly session, Chairman of the Committee on Law and Justice Hoang Thanh Tung stated that all four drafts: the Extradition Law, the Law on Transfer of Persons Serving Prison Sentences, the Law on Mutual Legal Assistance in Criminal Matters; and the Law on Mutual Legal Assistance in Civil Matters have researched, absorbed and generally stipulated the principles of mutual legal assistance in each field, that is, ensuring the principles of independence, sovereignty, territorial integrity, the principles of protecting human rights and citizens' rights, ensuring compliance with the provisions of the Constitution and relevant international treaties to which Vietnam is a member.

Emphasizing that, in accordance with the Constitution, the Constitution has clearly stipulated the guarantee and protection of human rights and citizen rights, the Chairman of the Law and Justice Committee said that the way the draft Law is expressed includes "guaranteeing, respecting and protecting human rights and citizen rights...". The draft Law only provides general provisions, not too detailed provisions, aiming to innovate the thinking of law-making.

Regarding the principle of reciprocity, the Chairman of the Law and Justice Committee affirmed that he would study and accept this provision. He also stated that in the field of civil judicial assistance, the principle of reciprocity still applies, but it is not stipulated separately but incorporated in Clause 2, Article 27 of the draft Law.

“We will coordinate with the Ministry of Justice to further study this issue. If necessary, there will be separate regulations on applying the principle of reciprocity, ensuring consistency like other draft laws,” the Chairman of the Law and Justice Committee emphasized.

Regarding the monitoring and post-audit mechanism, the Chairman of the Law and Justice Committee stated that Article 15 of the draft Law stipulates that the Government must annually report to the National Assembly on the results of judicial assistance in the civil field. However, the draft Law has made an innovation, which is that it does not stipulate a separate report but integrates it into socio-economic reports or work reports submitted to the National Assembly. For example, the extradition field will be reported in the Report on the work of preventing and combating crimes and violations of the law; the transfer of people serving prison sentences will be reported in the Report on the work of enforcing sentences.

Source: https://daibieunhandan.vn/can-nhac-bo-sung-nguyen-tac-co-di-co-lai-10393161.html