Military Justice in the Republic of Vietnam

• Author: By Colonel George F. Westerman
• Pages: 04

As the Anrerican commitment in Vietnam increases, c m tacts with +he Vietnameae military and its system of military juatiL, also grow. The author of this article presents a dzseusnon of military juatiee in Vietnam and compares that system with the Unifom Code of Mili-taw Justice. I. INTRODUCTION

On 14 May 1951, His Majesty Bao-Dai,' in the cool mountain town of Dalat, 175 miles northeast of hot, humid Saigon, signed Ordinance No. 8 promulgating the Vietnamese Code of Militand Juatioe * (E6 Qudn ludti.' Despite the many violent changes which have taken place in Vietnam since that time, this Code is still in effect and its amendments have been remarkably few.

* The opmions and conclusions expressed herein are thoae of the author and do not neeesemiiy represent the views of The Judge Advocate General's School or any other governmental agency.

** Colonel, JAGC, U.S. Army; Chief, International Affairs Division, Oflee of The Judge Advocate General, U.S. Army; formerly Staff Judge Advoeate, U.S. Military Asamlanee Command Vietnam and advisor to the Director of Military Justiee and Gendarmarie, Republic of Vietnam Anned Foreesi B.S. (Eke. Engr), University of Wisconsin, 1939; LL.B., University of Wisconsin, 1947; mmmher of the bars of the Supreme Court of Wmonain, the U.S. Supreme Court, the U.S. Court of Military Appeals, the U.S. Court of Claims, and the U.S. Court of Customs and Patent Appeals. The author wouid like to thank Colonel George S. Prugh, Jr., Staff Judge Advocate, U.S. Military Assistance Command, Vietnam, and his Vietnamese legal staR for the invaluable assistance they have provided to insure that this srtieie

1 Prior to the end af World War 11, BBO Dai was Emperor of Annam, then D protectorate of France. He ascended the Imperial throne of Annam in 1926 nt the age of 12. In 1946 Bao Dai abdicated the throne, and the Empire of Annam became extinct 88 a political entity. €or a few months in 1941 and 1949 Bso Dai sewed 88 "Supreme Advisor" for the government of Ho Chi Minh, then established in Hanoi, but in the spnng of 1946 he went to Hong Kmg where he remained for Beverai yews in exile. In 1949 he eoneluded anagreement with France to establish the State of Vietnam, of which he was soyereign, ruling with the titie of Chief of State at the time he eigned Ordinance NO. S. See U.S. DEP'T OF ANY, AREA HANDBOOK

eorrectiy reflects evrrent v,etnamese law.

7-29 (1962).

* A Vietnamese and French edition of this eode was published in the Jai~nal

OBeial du Vietnam du 18 Juin 1952 (No.

24 bia-P. 478401) [herein-

€or the eonvenience of those readers who may sene in Vietnm at a

future date, the Vietnamese equivalents of some of the more frequently used term will be shown in parenthesis.

IIPSB

FOR VIITHAM

after cited BQ CMJ].

A M

Although the last direct participdtim t y Frame I:, !ne 1namese judiciary system ended on IC September 1954; the I procedures and, with relatively few exceptions, thc legal cuncep s presently in farce in the Republic of Vietnam rFrench. This is also true of Vietnamese Code o,which bears a close resemblance to the French Codes de Justzei Militatre.'"

It is the purpose of this article to offer an ~?xcursion through the most important provisions and concepts of the Vietnamese Code of .wdltflTU Justice. Where it is thought to be useful, a

comparative analysis of the correlative philosophy, If any. of the United States L'nifonn Code of Militory Justict will be included. However, to a large extent, the reader xi11 be asked to drax upon his own knowledge of the fundamentals of United States criminal law.

11. THE CODE OF MILITARY JUSTICE AND OTHER APPLICABLE LAWS

1. CLASSIFICATIOX OF 0FFE.VSE.S

   In order to have a proper basis for understanding the Vietnamese Bystem of military justice, one must first become familiar with the classification of offenses. The course of the preliminary proceedings, as well 88 the trial and the functions af the particular officials involved, is determined to a considerable extent by the grade of the offense under consideration. Grading is based entirely on the character and extent of the punishment for an offense, as provided by the appropriate penal code. In Vietnam, as In France, offenses are ranked roughly in three classes: (1) less serious cnminal offenses icontrneentrons de simple police-French; tdi vi canh-Vietnamese), punishable by a fine and a maximum of ten days in jail;

   (2) offenses of moderate gravity (ddltts-French; khinh t6t --Vietnamese), punished by a fine and a sentence of mprisonment, as a rule not exceeding five years; and

   (3) the most serious offenses (crimes-French; trong t6t-Vietnamese), which are punishable by death, or imprisonment at hard labor far more than five years.

   VIETNAMESE MILITARY JUSTICE

   Only the last two classes are mentioned in the Code of Military Justice. Later, it will be shown haw the particular class into which an offense falls largely determines the procedures which will be utilized.

2. THE CODE

   The Code of Military Justice is divided into two parts: Title I, entitled "The Judgment of Offenses Committed by Military Personnel or Assimzlda," > and Title 11, "Military Offenses Committed by Military Personnel and Assirnilds and the Penalties Applicable to Them,"

   Title I has thirteen chapters, the first two of which cover the organization and jurisdiction of military courts. Other chapters describe in some detail the various procedures for the preliminary investigation,' the investigation by the examining magistrate: referral for trial and the procedures followed during the trial a

   itself. Provisions are also included far appeals,'" requests for rehearings and execution of judgments.'*

   Title I1 has two chapters, the first of which deals exclusively with punishments. Article 104 of this chapter provides that the punishments far ordinary crimes are those set forth in the ap-plicable civilian penal laws. Punishments for military offenses are found in the specific article dealing with each particular offense.

   Military courts may, in addition to the punishments specified by the civilian penal law for crimes (!Tong tdi) not of a purely militam nature, and by the Code of Military Justice far military offenses, impose accessory punishment known in French as dL-gradation militaire (tuoc daat binh guydn-Vietnamese) .I1 This punishment includes : (1) deprivation of grade and the right to wear the uniform and insignia:

   (2) expulsion from the armed forces and loas of civic, civil and family rights (This exclusion extends as well to the enjoyment of pension rights and other benefits author- ' ranked as military personnel.

   ized by legislation on pensions; the loss of family rights involves deprivation of the right ta be legal head of the family, to ~erre an the familk- council, and to share in the disposition of famil)- property.) ; and (3) deprivation of the right TO w a r any decorations.

   All sentences involving dlgr orders of the day.

   followng punishments:

   fn2i.e are published In the

   In the case of delita (kht,ih t d ! ) , miiitaiy courts may impose the

   -Vietnamese) (This invokes deprivation of grade and rank and the right to wear the uniform and insignia and. under certain circum-stances, the right to receive a pension.) ; (2) loss of grnde (This punishment has the same effect as drstdutioii except it does not effect the nght to a pension and to recompense far pait services.); and

   (3) Impiisonment.

   The various military offenses are defined in the second chapter of Title 11. BIost of these offenses have a fnmiiiar ring to anyone who has ever been associated with the military. Heading the list, in Section I, are "failure to reliort for duty" and "desertion." Section I1 deals with such offenses as militaiy revuit. rebellion, violence, assaults and insulting be-her offenses covered in this Section ohbing military wounded and dead.' the selling, bus-ing, misappropriation, waste, loss panning, re-ceiving and concealing of government property, pillage,'. roluntars self-mutilation;' and infractions of military orders.

   Articles 146 through 161 of the Code chvenng espionage and treaaon were rescmded and replaced b) Ordinance So. 47 issued by President Diem on 21 August 1956. Ordinance So. 4i not only covers espionage and treason in greater detail than they were previousl? covered by the Code hut six provldes for the punishment of various other c1-imes against the external Security of the State.

   ~ I* See CMJ tit. 11, eh. 11, 5 111. !'See CYJ art. 128

   See CMJ tit. 11. eh. 11, S VSee CMJ art. 133.

   I* See C I J art. 149

   See CMJ tit 11. eh. 11. 3 YII

   VIETNAMESE MILITARY JUSTICE

3. OTHER PERTINEA'T LAWS

   The Code oj .Wilitary Justice specifically provides that a military court must apply all the rules of ordinary criminal law of the region where the court is sitting which are not directly contrary to the code.%" This is true with respect to certain offenses," punishments generally s? and questions of procedure.la In order better to understand what law is applicable where, let's delve into a little history.z'

   During the period of French rule, all of Vietnam, together with Cambodia, Laos and the French leasehold in China, was placed in an Indo-Chinese Federation under a French Governor-General. At that time Vietnam had three major regions: Tonkin (now Sorth Vietnam) ; Annam (the central portion of Vietnam) ; and Cochin China (the southern part of Vietnam which includes Saigon and the Mekang delta area). Each of these three regions was treated differently from an administrative point of view.

   Tonkin was made a protectorate, administered by mandarins responsible to French residents, and used modified French legal codes. However, since Tonkin is now the Peoples Republic of Vietnam, a discussion of the administration of military justice there today is beyond the Scope of this article.

   While royal authority was preserved in Annam where imperial rule had long prevailed, it was a180 made a protectorate under the close watch of a French resident superior...