Social,Cultural and Systemic Barriers to Child Justice Reform: Lessons from Vietnam

Abstract

The implementation of child justice reforms often lingers or fails because it has not been systematically planned, properly communicated or adequately resourced. There are also many social, cultural and systemic barriers to child justice reforms, but these barriers are often poorly understood and meekly addressed. Progress in implementing rights-based comprehensive child justice systems has been slow, and there is a growing interest in understanding why, in many countries, child justice reforms have made relatively little progress over the past 30 years. This article reviews the experience of child justice reforms in Vietnam and discusses the broader question of policy transfer, specifically the translation of international children’s rights standards and norms into national child justice laws and policies.

Introduction

The Parliamentary Assembly of the Council of Europe observed that

despite the panoply of international and regional standards providing a well-established framework for modelling juvenile justice, there is a considerable and continuing dissonance between the rhetoric of human rights discourse and the reality of juvenile justice interventions, in particular juvenile detention, for many children. (Council of Europe Parliamentary Assembly, 2014: para 3)

The United Nations Committee on the Rights of the Child frequently deplores the poor enforcement of human rights standards in the area of child justice and child detention. Many State parties to the Convention on the Rights of the Child (CRC) have yet to achieve full compliance with the Convention, particularly regarding prevention, the development and implementation of diversion measures, the minimum age of criminal responsibility, conditions of detention and alternatives to detention (Committee on the Rights of the Child, 2019). Thirty years after the adoption of the CRC, according to the United Nations’ global study on children deprived of liberty, the over-reliance on detention and the over-representation of vulnerable children in detention remain a huge global concern (United Nations, 2019).

In many countries, the implementation of child justice ¹ reforms has lingered or failed because it has not been systematically planned, properly communicated or adequately resourced. Too often, the proclamation of a new law was treated as a final achievement as opposed to a mere starting point. In fact, such reforms often failed because of predictable implementation issues (Berman and Fox, 2016). Implementation challenges are many, and if the implementation process is not monitored, there is no way to know whether these challenges are effectively addressed (Pierce Parker and Upin, 2016). There are many social, cultural and systemic barriers to child justice system reforms, but these barriers are often poorly understood and feebly addressed.

Vietnam was the second country to sign the CRC and it then proceeded with its implementation by enacting the Law on Protection, Care and Education of Children 1991 (revised in 2004) and the Law on Children 2016. In recent years, the country engaged in reforms dealing generally with justice for children and resulting in important amendments to the Penal Code, the Criminal Procedure Code and the Law on Organization of Courts, among others. In particular, the establishment in Vietnam of a Family and Juvenile Court, as a foundation for a child justice system, has encouraged a greater engagement of child justice researchers and practitioners in the further development of a specialized child justice system.

Despite the progress achieved to date in improving its response to youth crime and its treatment of young offenders, Vietnam has yet to develop a comprehensive, coherent and effective child justice system. The number of young offenders caught in the country’s punitive system is rising and there are limited alternatives to child detention and few rehabilitation and reintegration programmes (Committee on the Rights of the Child, 2012). For effective human-rights-based child justice reforms to succeed, the country needs to address many complex challenges, including the public’s punitive attitude and preference for harsher punishment; the absence of a comprehensive child justice law and existing overlaps between the administrative and the criminal justice systems; a persistent over-reliance on child detention; the absence of a coordinating agency for child justice and limited interagency collaboration; the limited capacity and training of justice officials at all levels; a lack of child justice specialization within the police, procuracy, courts and correction agencies; and the very limited services available for the effective supervision, reeducation and reintegration of young offenders.

This is taking place in a context where there is a perceived increase in youth crime, especially as it relates to theft, robbery, crimes against the person and drug-related crimes. Youth crime has become a greater social issue due to public concerns about serious cases connected with youth activities and involving considerable loss of life. According to statistics released by the Ministry of Public Security and the People’s Supreme Court, as well as a survey conducted by the People’s Supreme Procuracy, the prevalence and seriousness of youth crime have both slowly but steadily increased in this country.

Progress in implementing a comprehensive justice system has been slow and there remain several social, cultural and systemic barriers to successful and comprehensive child justice reforms. As a result, there is enduring scepticism about the impact of past justice reforms and a growing interest in understanding why child justice reforms have made relatively little progress. However, Vietnam is not the only country facing such barriers and there is perhaps something to be learned from comparing its experience to that of other countries.

This article reviews the experience of child justice reforms in Vietnam and discusses the broader question of policy transfer, specifically the translation of international children’s rights standards and norms into national child justice laws and policies. Like others who attempted a similar analysis elsewhere (e.g. Cunneen et al., 2018), we assume that the human rights framework provides an essential conceptual tool for critically analysing both the changes and the resistance to change that have characterized child justice reforms in Vietnam. However, reform initiatives inspired by or based on international norms, such as the requirements of the CRC and other international child justice norms and standards, encounter resistance when they are perceived as foreign, contrary to local values and traditions, incompatible with national legal precepts, or otherwise irrelevant to the national or local context.

Organizational change and policy transfer/diffusion research has already identified factors that tend to hinder the successful transfer of international policy and standards to local laws and institutions (Minkman, van Buuren, and Bekkers, 2018). These factors include insensitivity to existing practices, the cultural context and embedded interests in maintaining the status quo (Bache and Taylor, 2003); a lack of buy-in from the importing agency or actors (Stone, 1999); dispersed or decentralized governance and the resulting differences in policy implementation at the national, subnational and local levels, depending on the degree of political separation (Hudson et al., 2019); polarized or differential public opinion or outright public opposition (Evans, 2009); insufficient structural and institutional capacity, including insufficient technological, economic, bureaucratic, political and human resources for implementation (Dolowitz and Marsh, 1996); the high costs of institutional adjustments and capacity building (Marsh and Shama, 2009); unrealistic expectations of the reform (Hudson et al., 2019) or the mismanagement of public and professional expectations; and a lack of rigorous monitoring and evaluation of the reforms (Dandurand et al., 2015; McConnell, 2015). Unsurprisingly, where such obstacles persist, the political will and organizational resolve to sustain the long-term implementation of justice reforms dissipate over time.

This article discusses some of the obstacles frequently encountered in implementing child justice reforms in Vietnam and elsewhere, including institutional inertia and resistance, as well as the role of media representations and their impact on public perceptions and public attitude towards child justice reforms. It attempts to draw lessons from past experience in implementing such reforms and calls for the collection of better data to monitor the implementation and impact of child justice reform initiatives.

Overview of Child Justice Reforms in Vietnam

Child justice reforms in Vietnam have included some major policy initiatives dealing more generally with justice for children and resulting in fairly recent amendments to the Penal Code, the Criminal Procedure Code, the Law on Organization of Courts and the Law on Children, among others. The first important step was the introduction of a fundamental change in the country’s approach to youth crime, the enactment of the Penal Code 1985, which acknowledged the need for distinct criminal law dispositions for young offenders and devoted a chapter (Chapter VII) to govern issues such as the age of criminal responsibility, the basic principles for the handling of criminal offences committed by children, the penalties and judicial measures applicable to young offenders, statutory reductions in the penalty to be served by children and the revocation of criminal records for convicted young offenders. To support these new substantive provisions, the first Criminal Procedure Code was adopted in 1988 which set up in Chapter XXXI a meaningful set of separate criminal procedures for child defendants. Criminal law (both substantive and procedural) has continuously evolved around the notion of the separate and tolerant treatment of children in conflict with the law. It culminated in new provisions on diversionary measures included in the Penal Code 2015 and the child-friendly principles and procedures in the Criminal Procedure Code 2015. The latter also broadened procedural safeguards for victims and witnesses of crime under 18 years of age. From there, criminal legislation has moved slowly towards the implementation of diversion, restorative justice for young offenders and child-sensitive approaches for all children in contact with the law.

After the adoption of the first Penal and Criminal Procedure Codes, child justice development continued with the first special law on children. In 1991, the National Assembly of Viet Nam passed the Law on Protection, Care and Education of Children to manage children issues separately from those of adults. The law was amended in 2004 and became the Law on Children in 2016. Children’s views and opinions were part of what motivated law makers to proceed with these reforms.

Another very important step with respect to child justice was taken in 2014 when the National Assembly adopted the Law on Organization of Courts (revised) which provided for the establishment of a Family and Juvenile Court. Several arguments supported the establishment of this special court, mainly the need to comply with international obligations under the CRC in order to fully support children’s right to participate in legal proceedings that concern them, to promote a greater specialization of justice professionals dealing with children’s issues, to ensure that the principle of the best interests of the child is applied in all decisions concerning children, to support child-friendly approaches during child justice proceedings and to facilitate the involvement of social workers and the social welfare sector (UNICEF and Supreme People’s Court of Viet Nam, 2012).

Diversion and restorative justice are relatively new concepts in Vietnam, but they are receiving increased attention (UNICEF, 2007). Opinions are often expressed by practitioners and researchers about the need to find a better balance between legal and public safety concerns and concerns for the rights and welfare of the child. There is also a growing consensus among professionals that the prevention of youth crime and effective responses to young offenders should be educational, rehabilitative and restorative rather than relying mainly on punishment (Nguyên, 2019). Furthermore, this progressive point of view sees the need to structure a child justice system to include not only the family and juvenile courts but also specialized investigation and prosecution authorities. It also holds that specialized law enforcement officials especially trained to deal with children should be involved in child justice cases. In addition, specialized legal proceedings are called for to satisfy the requirements of the criminal justice policy, the principle of tolerance and the children’s psychological and social needs (Trần, 2012: 121). Legal experts are also concerned with aftercare and social reintegration measures. They call for social reintegration programmes for the convicted children to ensure their successful return to the community and desistance from crime (Dandurand, 2011; Nguyễn, 2009; Nguyên, 2019; Nguyen and Dandurand, 2019).

Vietnam has a huge body of laws and regulations governing issues relating to justice for children in general and the handling of cases involving children in conflict with the law in particular. Article 37 of the Constitution 2013 sets up the highest level of protection of children’s rights by confirming the rights of children to protection, care and education to be provided by the family, the State and society and allowing children to participate in decisions that concern them. Furthermore, the article strictly prohibits activities such as maltreatment, abandonment, abuse and exploitation of labour and other forms of violation of children’s rights.

In addition, Vietnam’s Law on Children 2016 pays much attention to children referred to as ‘children in special circumstances’, including children in conflict with the law and other vulnerable children. The Law purports to (1) ensure the right to defence and legal aid for children; (2) ensure timely supply of prevention, assistance and intervention measures that are safe, continuous, adequate, flexible and suitable to the needs, circumstances, age, psychological and physiological characteristics of children while taking into account respecting opinions, aspiration, emotion and attitudes of children; (3) ensure close connection between agencies, organizations, child protection services, families, educational institutions, and procedural agencies or administrative violation-handling agencies; and (4) protect the privacy of children.

With respect to administrative justice, the Law on Handling of Administrative Violations 2012 devotes a whole part (Part V) on specific measures for dealing with offences committed by children. These provisions (Articles 133–137) specify policies and measures peculiar to administrative infractions applicable to infractions committed by children. Article 134 of the law recognizes specialized principles in using administrative sanctions against child offenders, including the need of considering alternative measures to administrative sanctions. Alternative measures include admonition (warning) and management at home (Articles 138–140). It is worth noting that children subject to alternative measures are not to be deemed sanctioned at all. As compared to the law it replaced, the 2012 law is far more supportive of a specialized approach to handling young offender cases and introduces a number of new or enhanced child-sensitive provisions. However, the Law on Handling of Administrative Violations contains impracticable requirements for the application of alternative measures instead of administrative sanctions for children. These requirements have been criticized for ignoring the reality of the child offenders’ typical circumstances (Vương, 2019).

Similarly, the criminal law has made important progress in protecting the rights of young offenders. The Penal Code 2015 (last amended in 2017) contains a separate chapter (Chapter XII) that specifically applies to persons under the age of 18 years at the time of committing an offence and acknowledges the crucial importance of applying the principle of the best interests of the child in all decisions that concern a child. Moreover, the Penal Code established certain supervisory and educational measures for offenders under 18 years of age who are exempted from criminal responsibility. Such measures are similar to diversion measures adopted in other countries. In addition to the Penal Code, the Criminal Procedure Code 2015 sets out a set of principles on the application of child-friendly criminal procedures, importantly stating that criminal procedures must be child-friendly, appropriate for the child’s age and level of cognitive maturity, ensure the protection of the lawful rights and interests of children, and guarantee that the best interests of the child are considered (Article 414(1)).

The Law on Organization of People’s Courts 2014 has established for the first time a specialized court for children cases, the Family and Juvenile Court. With regard to children, the Court exercises jurisdiction over cases in which a crime is committed by a child or the crime victim is under the age of 18 and seriously suffered from psychological harm or is in need of assistance due to a lack of family support. It also has jurisdiction when it comes to imposing administrative sanctions on young offenders whose case was heard in the people’s courts.

With respect to the rehabilitation and social reintegration of young offenders, the Law on Execution of Criminal Judgements 2010 affirms the principle that the execution of criminal judgements on convicted children aims to educate and support them and help them to become ‘good persons for society’ (Article 4(5)). It also grants authority and responsibility to prison or jail facility managers and criminal executing agencies of district police to work closely with the offenders’ family members, local authorities, relevant agencies, organizations and individuals in encouraging the prisoners to keep up good spirit in training themselves to receive parole granted by the State and also in providing support in the education and vocational training of prisoners and preparing them for their reintegration (Article 39(2)). Section 3 Chapter III of the law specifically defines the detention regime for the children prisoners according to their age, educational background, gender and health to prepare for their reintegration after serving their sentences.

However, even after these various reforms, the numerous laws and regulations do not amount to an integrated, rights-based, systemic approach to juvenile crime.

Obstacles to the Implementation of Child Justice Reforms

Like all criminal justice reform initiatives, child justice reforms encounter predictable obstacles. They include the punitive attitude of the public or the ‘retributive reflex’, organizational resistance to change, vested interests in maintaining the status quo, and either the lack of incentives or the disincentives and perverse incentives, all of which capable of defeating the pursuit of reform objectives. There are also obstacles that are specific to child justice reforms, particularly those driven by the need to comply with the CRC and promoted by the Committee on the Rights of the Child (2019). The relevance of achieving compliance with international norms and standards is perceived through local historical, cultural and political filters. In fact, these reforms are shaped, implemented and challenged through the complex interactions of political, socio-economic, cultural, judicial and organizational factors (Muncie, 2013). In that regard, in any society, social representations of childhood and children play a determinant role with respect to the recognition of children’s rights and the broader social acknowledgement of children as rights bearer (López Galicia, 2016).

The various obstacles typically encountered during the implementation of child justice reforms have yet to be properly documented. Some information is sometimes available through country reports submitted by State parties to the CRC to the Committee on the Rights of the Child, and there have been a few attempts to systematically identify these obstacles and offer suggestions as to how they can be addressed. For example, as part of its Toolkit on Diversion and Alternatives to Detention, UNICEF developed a list of common obstacles related to the implementation of these measures for young offenders (UNICEF, 2009), but the list is quite general.

In Vietnam, as in many other countries and despite formal declarations and legal proclamations, an understanding and acceptance of basic children’s rights have not yet been fully integrated into local values, attitudes and beliefs, and this contributes to passive resistance to the full implementation of rights-based child justice reforms.

Acceptance of the principle of the best interests of the child

The primacy of the principle of best interests of the child (articulated in Article 33(1) of the CRC) is often opposed, in the minds of many, to a desire for public safety. As the Committee on the Rights of the Child explained,

(v)iewing the best interests of the child as ‘primary’ requires a consciousness about the place that children’s interests must occupy in all actions and a willingness to give priority to those interests in all circumstances, but especially when an action has an undeniable impact on the children concerned. (Committee on the Rights of the Child, 2013: para 40) ²

Under Article 12 of Vietnam’s Penal Code 2015, the minimum age of criminal responsibility is 14. Therefore, juvenile offenders are persons aged from 14 to under 18 years at the time the crime was committed. According to Article 98 of this Code, penalties imposed on juvenile offenders include warning, fine, noncustodial reform and a term of imprisonment. The PC 2015 contains specific provisions on the last three types of penalties as well as dispositions concerning sentencing, combined penalties, penalty exemption or commutation, and conviction expungement for juvenile offenders. Along with criminal penalties, juvenile offenders can be sentenced to a judicial measure known as ‘education at reformatory schools’.

The legal age of the child is directly linked to an acceptance of the principle of the best interests of the child. Vietnam has considered raising that age to 18 years. However, the Law on Children 2016 has maintained the definition of a child as someone under the age of 16 years. Vietnamese lawmakers have been very hesitant to change this aspect of the law. A lack of recognition of children as individual rights bearers, or a lack of respect for children’s right to be consulted and to have their views considered in all matters that concern them, significantly complicates the implementation of rights-based child justice reforms.

Accountability of young offenders

Before the 2015 amendments to the Penal Code, there were discussions relating to the definition of the minimum age of criminal liability. Some legal professionals and law enforcement officials suggested that the minimum age be lowered. For example, a Chief Judge expressed his concern that there had been several cases where children were known to have committed murder or some other serious crimes, but were not held criminally responsible because they had not yet reached the age of 14, and he suggested that the minimum age be lowered (Phạm, 2019). Some extreme views, following a few high-profile young offender cases involving murder or serious violence, supported the idea that child offenders should be treated in the same way as adult offenders, ignoring the developmental nature of childhood. ³

Abandoning the traditional objectives of criminal justice, in particular punishment and deterrence, is not an idea that the Vietnamese population as a whole is necessarily ready to embrace. For many people, holding young offenders accountable for their behaviour is not dissociable from punishment, or at least, the imposition of unpleasant consequences. Alternatives to punishment are not seen as effective in preventing crime and promoting public safety. The public is unaware of or does not trust the research evidence on the effectiveness of such measures. In the absence of reliable youth crime statistics, the population is willing to blame youth for a lot of unresolved criminal incidents where the identity and age of the perpetrators are unknown. Misinformed assumptions are also frequently made about drug addiction and mental illness among youth. In brief, the public safety aspects of child justice reforms are poorly understood by the population or viewed as insufficient to prevent crime and ensure community safety.

An important aspect of the question of accountability of young offenders in Vietnam is that of the scope and extent of their criminal responsibility as defined by law. Over the past few years, opposing views and attitudes concerning the scope of the criminal responsibility of children have become more vocal in the media and elsewhere. The debate has engaged members of the National Assembly, the media, policy analysts and social scientists, as well as the legal community and justice practitioners. Many of the views expressed support limiting the range of offences for which children can be found criminally responsible. Others, however, argue in favour of maintaining the broader scope provided in the 1999 Penal Code. ⁴

Privacy and protection of identity

The holding of open trials and criminal proceedings in Vietnam, including in cases involving children, has been advocated for a long time in order to raise young people’s awareness of the law and dissuade them from committing crimes. More recently, this type of trial has been criticized because it is deemed contrary to children’s right to privacy and the protection of their identity. There is an ongoing discussion among professionals on whether all criminal cases with young offenders should be closed or only some of them, and whether case information should be made public for public safety reasons. International standards require the implementation of measures to protect the privacy and the identity of young offenders in order to prevent their ostracization and stigmatization and facilitate their social reintegration. However, it is sometimes difficult to involve community members in the active social reintegration of young offenders without informing them about these youths and what is required to assist them. Interagency protocols to guide the exchange of confidential information about young offenders and to safely engage the community in the reintegration of offenders (e.g. through mass organizations such as the Women’s Union, or local community organs) are still missing.

Obstacles Relating to Specific Aspects of Child Justice Reforms

Diversion and restorative justice

Diversion and restorative justice are relatively new concepts in Vietnam. Views are often expressed by practitioners and researchers about the need to find a better balance between legal and public safety concerns and concerns for the rights and welfare of the child. There is also a growing consensus among professionals that the prevention of juvenile crime and effective responses to juvenile delinquents should be educational, rehabilitative and restorative rather than relying mainly on punishment (Nguyen, 2019). In 2010, the Ministry of Justice and UNICEF conducted an assessment of the legal framework relating to diversion and restorative justice in Vietnam (Ministry of Justice and UNICEF, 2012). This was followed by the development of National Guidelines on Diversion in the Vietnamese Juvenile Justice System in 2010. The guidelines were used for advocacy purposes and for training purposes during the implementation of a pilot project on community-based support for minors in conflict with the law in Dong Thap province. The guidelines, however, were never formally endorsed by the Ministry.

The Penal Code 2015 provides three supervisory and educational measures applicable to juveniles exempted from criminal responsibility, including reprimand, community reconciliation and education in the commune. Article 91(2) of the PC 2015 prescribes specific circumstances, offences and conditions for the application of these measures. It should be noted that even if all requirements are met, procedure-conducting bodies are not obliged to use supervisory and educational measures. Article 92 imposes a common condition, which is that the child or his or her legal representative must accept the measure. Subsequently, Articles 93, 94 and 95 stipulate specific circumstances for applying these three supervisory and educational measures and obligations of juvenile offenders. Supervisory and educational measures, especially community reconciliation, have certain restorative justice features as they can allow crime victims and family members to play a role in the process. However, some scholars consider that the obligations imposed on children subjected to these community-based measures are too general and do not focus sufficiently on re-education (Nguyen and Phan, 2017: 98).

These provisions tend to be understood as a form of diversion. According to the Standing Committee of the National Assembly, reprimand, community reconciliation and education in the commune are alternative measures for penalties and judicial measure (Standing Committee of the National Assembly, 2015). The Ministry of Justice has adopted a different view and argues that these measures are basically an extension of the criminal liability exemption, providing supervisory and educational measures instead of releasing the children unconditionally (Ministry of Justice, 2015). In practice, it seems that in some instances these measures are sometimes applied as alternatives to penalties and judicial measure even in cases where the child is not exempt from criminal responsibility (Le, 2018).

In terms of procedures, Articles 427, 428 and 429 of the Criminal Procedure Code 2015 determine the procedures for imposing the three supervisory and educational measures. Article 15 of Joint Circular No. 06/2018/TTLT of the Supreme People’s Procuracy, the Supreme People’s Court, the Ministry of Public Security, the Ministry of Justice and the Ministry of Labor, War Invalids and Social Affairs contains guidance regarding the cooperation of relevant authorities, agencies and individuals in applying these measures. Article 16 of this Joint Circular particularly explains procedures for using the measure of community conciliation. It supplements that when parties cannot reach an agreement, procedure-conducting bodies shall continue the investigation, prosecution and trial under ordinary procedures. In 2018 the Government adopted Decree No. 37/2018/ND-CP that provides detailed guidance for the enforcement of supervisory and educational measures. Accordingly, the responsibility to organize and carry out supervision and education of juvenile offenders is assigned to various actors including People’s Committees, police at the commune level, families, and relevant agencies, organizations and individuals. Rights and obligations of juveniles being supervised and educated are also articulated in the Decree (Le et al., 2017).

However, the percentage of young offenders who are dealt with through diversion or restorative justice measures remains very low, due to the very limited community-based services (including private ones) available for the effective supervision, re-education and reintegration of these children (Ministry of Justice and UNICEF, 2019). Justice officials are still sceptical about the actual effectiveness of these more informal measures, as they remain largely unaware of the advantages of applying restorative justice and diversion measures (Ministry of Justice and UNICEF, 2019).

In practice, despite important amendments to the law, imprisonment remains the most frequently imposed sanction in cases involving young offenders (Ministry of Justice and UNICEF, 2019: 84–85). Supervisory and educational measure are still rarely used. This is due in part to the fact that Penal Code’s provisions relating to criminal liability exemption for juvenile offenders introduced by Article 91(2) of the PC 2015 are not compulsory. Investigating bodies, procuracies and courts have discretionary power in deciding whether or not to exempt juvenile offenders from criminal responsibility and apply supervisory and educational measures. Scholars have argued that this places an additional burden on the judicial bodies, especially the courts, and that, in the context of a traditional justice system like that of Vietnam, it is not surprising that judges give priority to penalties which they believe to be more effective in preventing reoffending (Nguyen and Phan, 2017: 100).

Social reintegration of young offenders

According to the spirit of the Law on Child Protection, Care and Education and the Penal Code, the main purpose of an intervention in cases involving young offenders is to educate and help them correct their mistakes, develop healthily and become helpful citizens. However, the need to support and facilitate the children’s social reintegration after their release from prison or reform schools in not formally recognized in Vietnamese law (Hai and Dandurand, 2013). The concept is only articulated in general policies with no specification of programme requirements. It is therefore difficult for local communities and agencies to implement reintegration programmes with nothing more that the resources currently at their disposal. However, some community-based models for the reintegration of juveniles after a stay in a prison or rehabilitation facility have emerged, such as the Plan Vietnam’s Juvenile Crime Prevention and Reintegration Project (Dandurand, 2011), the grandparents and children clubs initiated by the Viet Nam Fatherland Front, or the ‘reintegration of children in conflict with the law’ pilot project by the Faculty of Women studies of the Open University and the People’ Committee at Commune 4 District 4 of Ho Chi Minh City (Nguyen, 2019). Pilot projects such as these are slowly making it possible for community-based organizations to advocate for evidence-based reforms to support the reintegration of young offenders in the community.

Violence against children within the justice system

In the Vietnamese justice system, child victimization is perpetuated by unfair and prejudicial attitudes towards young offenders, an ignorance of child-sensitive approaches and a limited institutional capacity. There have been efforts to address these issues, including introducing manuals (guidance) and training courses for law enforcement authorities in working with children in contact with the law. However, guidance and training have tended to focus on the situation of child victims and witnesses of crime rather than on preventing abuse and violence against young offenders.

Children at risk of becoming involved in crime are also at risk of victimization. Sadly, many children in conflict with the law were themselves victims of abuse or neglect. The 2014 statistical analysis of violence against children conducted by UNICEF revealed once more how prevalent violence against children continues to be in every setting and in every country, including in Vietnam (UNICEF, 2014). The complementary roles of the justice system, on the one hand, and the child protection, social welfare, health and education sectors, on the other, in creating a protective environment and in preventing and responding to violence against children must be acknowledged (Dandurand, 2014). Cooperation between the justice system and child protection agencies is absolutely critical, but still very limited in Vietnam.

The United Nations Model Strategies and Practical Measures on the Elimination of Violence against Children in the Field of Crime Prevention and Criminal Justice include a group of strategies and measures to prevent children from being victimized during their contacts with the justice system. This is because of the heightened risk of violence faced by children alleged as, accused of, or recognized as having infringed the criminal law. Considering that one important objective of the criminal justice system is the protection of children’s rights, violence against children within that system thwarts its achievement and is counterproductive to any efforts to rehabilitate and reintegrate the child. There is no greater sign of the failure of child justice reforms than the violence and abuses that children are subjected to within the criminal justice system itself (Special Representative of the Secretary General on Violence against Children, 2012).

In Vietnamese criminal procedural law, child victims have not been given adequate attention and even less so children victims of violence or abuse within the criminal justice system (Chi, 2019). The expansion of the scope of the legal protection offered to child victims and witnesses of crime was a significant improvement brought by the Criminal Procedure Code 2015. However, there remains a generalized institutional failure to denounce, detect and adequately respond to such abuses is strong evidence of a prevailing institutional indifference to the rights of children and an unwillingness to implement reforms.

Organizational and Capacity Building Issues

One of the reasons why the implementation of child justice reforms sometimes falters is the lack of attention paid to capacity building. As a result, the reallocation and realignment of resources with new priorities have not been planned or effected, the nature and objectives of the reforms are poorly communicated, and a capacity to coordinate and monitor the implementation process has not been developed. In Vietnam, organizational change and capacity building have yet to receive the attention needed for the successful implementation of child justice reforms. The establishment of juvenile courts, for example, was not accompanied by the establishment of corresponding specialized units in the Ministry of Justice, the Ministry of Public Security (police) and the People’s Procuracy System. Justice officials and other relevant professionals have yet to receive adequate specialized training with respect to child justice. Effective coordination mechanisms are not yet fully in place and properly resourced (Nguyen, 2019). The child justice system is also challenged by the lack of effective interagency collaboration and coordination mechanisms (Ratnam-Raman, 2019). For example, according to Report No. 69/BC-DGS in May 2020 by the Overseeing Delegation of the National Assembly XIV, criminal justice agencies have complained about the lack of legislative guidance on interagency collaboration among the different bodies responsible for the investigation, prosecution and adjudication of cases involving children. Furthermore, the lack of professional, well-trained, remunerated practitioners to support the rehabilitation of young offenders in the community seriously hinders the implementation of effective education and rehabilitation programmes (Ministry of Justice and UNICEF, 2019). Similarly, the full implementation of the newly instituted Family and Juvenile Courts is lagging behind for lack of planning and lack of specialized training for specialist judges nation-wide, especially at district level, including training for all specialist judges on child justice and child-friendly adjudication (Ratnam-Raman, 2019). Unlike other countries of the region, Vietnam has yet to adopt a comprehensive plan for the implementation of child justice reforms and to identify a coordinating agency responsible for it.

Presently, in Vietnam, there is no lead or coordinating agency for child justice and no specific mechanism to ensure effective collaboration across the sector (UNICEF, 2015). The multiple agencies which have a role to play in responding to children in conflict with the law are essentially operating without effective leadership or coordination. Leadership is required to mobilize support for and implement institutional reforms, including leading the necessary shifts in legal culture, establishing the organizational conditions that will favour the reforms or maintaining strong communication among stakeholders throughout the process and coordinating key activities.

Child justice reforms are complicated by the fact that, despite their label, they are meant to influence not just one system, but a number of overlapping systems (Abramson, 2006: 23). Vietnam’s child justice system engages multiple systems, each one of them currently engaged in important transitions and therefore not necessarily focused on cooperation, collaboration and coordination. Recognizing this deceivingly simple fact is a necessary starting point for effective child justice reforms. Some recent joint activities of the Ministry of Labour, Invalids and Social Affairs (Children Bureau) and the Ministry of Education and Training, or the Supreme People’s Court regarding the prevention of school violence and the protection of child victims of sexual violence have paved the way to future cooperation, but the country is still far from having adopted a systems approach to child justice reform. As a result, reforms to date have tended to be disjointed and there is no shared or common understanding of how individual agencies contribute to the broader child justice goals (Ministry of Justice and UNICEF, 2019; UNICEF, 2015).

In Vietnam as elsewhere, youth crime is related to various structural issues such as exclusion, poverty and inequality, which to one degree or another weaken family, community and institutional protection mechanisms. Reducing such disparities in the child justice context is an important reform goal, but such issues cannot be addressed by justice reforms alone. The child justice system, for example, cannot compensate for the weaknesses of the education or child protection systems. It cannot resolve prevailing racial and ethnic disparities, themselves related to poverty, social disadvantage, neighbourhood disorganization, limited opportunities and other structural inequalities. In some instances, it may even exacerbate some of these disparities. Child justice reforms cannot be dissociated from the broader protection of children’s rights.

Media Representations and Public Attitudes

All in all, law reform is a fairly week instrument of cultural change (either within the justice system or in society more generally). The law can never move too far ahead of social values, culture and shared popular beliefs. Fundamental reforms that seek to redress social inequalities and promote greater fairness require broader social as well as legal change. Many reforms ‘fail because they are imposed on an unreceptive audience’ (Naylor and Tyson, 2017: 83). Understanding public views and the nuances of public sentiment towards child justice makes it possible to develop and undertake information strategies to clarify misunderstandings and potentially overcome resistance. It is difficult enough to achieve sufficient consensus to provide impetus for reforms, and that consensus is not always strong enough to support the legal reforms through the long and complex process of implementation.

An additional challenge is that of reconciling professional views of critical priorities for child justice with public expectations of the justice system. Public attitudes towards important social policies, including child justice policies, tend to be complex, ambiguous and fluid. Much of that complexity results from the diverse and often conflicting values and beliefs underlying these attitudes.

In Vietnam as in other countries, most people do not have a direct experience of the child justice system. What they know about it comes from news media and, increasingly, the social media. These representations are subject to various forms of manipulation, but they nevertheless shape public attitudes and beliefs about the child justice system and the impact of child justice reforms.

In Vietnam, media representations tend to highlight serious offences committed by children, often vilifying or demonizing the youth, reproducing negative stereotypes of young offenders and feeding public fears. The public threat that youth crime may represent is exaggerated and the system’s response to it is mostly described as inadequate. Comments by law enforcement officials tend to exaggerate the problem. ⁵ These comments are often discriminatory towards certain groups and violate the children’s rights to privacy. ⁶

It seems that, as a rule, fear of crime and feelings of insecurity are directly related to punitive attitudes and public opposition to rehabilitation-oriented policies. Some psychologists argue that people’s ‘retributive impulse’ and ‘community notions of justice’ must be recognized in implementing legal reforms and communicating them (Sivasubramaniam, 2017). However, the motivation to punish an offender does not necessarily preclude the endorsement of other considerations.

In Vietnam, public opinion tends to support punishment of offenders as the most effective way to ensure public safety. A few well-publicized serious youth crimes, a few of them involving a loss of life, have exacerbated public fears and concerns. The media’s focus on these particular incidents amplified existing fears and provoked a punitive public reaction. Some justice officials have responded by embracing and intensifying the punitive discourse. For instance, a judge noted the growing social concern and wrote that he worried by the short imprisonment terms imposed on young offenders due to what he perceived as the lenient provisions of the Penal Code (Phạm, 2019). All of this was bound to affect public confidence in the child justice system.

Public attitudes about youth crime play a significant role in fashioning child justice policy. In New Zealand, a qualitative study which explored public attitudes and opinions revealed that individuals who had concerns about their own safety tended to be more punitive than those who felt safer (McArdle et al., 2018). Unfortunately, similar studies are not yet available in Vietnam.

Public perceptions of child justice have evolved, tending to increasingly focus on the welfare of the child and support for an educational and restorative approach. This may eventually form a stronger basis for child justice reforms. In this country, public education and awareness-raising activities have progressively altered the popular view of children, from seeing them as ‘miniature adults’ to considering them as persons whose moral judgement and cognitive capacities are not yet fully developed, but not necessarily as individual right bearers (Nguyen, 2019). In particular, there remains a need for more community-level education about the principle of best interests of the child and he right of the child to participate in decisions that concern them.

Institutional Resistance and Obstruction

The way child justice reforms are implemented can sometimes trigger a negative response among those working in that system. The implementation process must take into account the particular culture and practices of the various organizations involved. At first, officials tend to be suspicious of ideas that originate from outside of their organization and, in some instances, actively oppose or even sabotage proposed reforms.

The Committee on the Rights of the Child has frequently identified institutionalized obstructions to the implementation of the CRC in general and, more specifically, serious breaches and violations of the human rights of children within some child justice systems (Goldson and Muncie, 2012). The child justice sector is often rife with scepticism about the adoption of rights-based and evidence-based practices.

Child justice reforms in Vietnam have also had to face systemic resistance, but the latter was often covert and has not been well documented. Many practitioners are unable to agree with the use of less punitive, educational and reintegrative measures to respond to youth crime. For example, legal practitioners take refuge behind a narrow interpretation of the principle of proportionality which requires penalties to be proportional to the seriousness of offences, without much regard to the circumstances of the offenders or the need to treat young offenders in a manner that takes into account their level of development.

Barriers to rights-based and evidence-based child justice reforms are quite common with law enforcement and justice institutions. Some of the barriers are practitioners-based, while others are environmental, organizational and systemic. There are deep-seated punitive approaches and practices that are entrenched in organizational cultures. Given these sub-cultures, one can understand why diversion, informal responses to youth crime and alternatives to incarceration have been resisted.

Numerous studies have documented that there are sub-cultural values and beliefs unique to police organizations that make them deeply resistant to change (Cohen, 2017). Some elements of that particular culture may explain various instances of police resistance to child justice reform. As Newburn (2011: 2) notes, ‘without police involvement and agreement, reforms to other aspects of the system will be at best mitigated and at worst undermined’. Furthermore, internal structures and processes cannot be fully relied on to disseminate and communicate details of the reform and convey new performance expectations, especially when their purpose is to get police to behave or respond to situations differently (MacQueen and Bradford, 2017: 341).

With respect to the cultural dimensions of reform, ‘it is important to understand culture before implementation begins and consider it throughout the process’; agency cultures, views and attitudes that developed over time must be taken into account for reform to be successful (Pierce Parker and Upin, 2016: 18).

In Vietnam, several awareness-raising workshops and training courses relating to children’s rights and the need for child justice reforms were held over the years. The objectives of these activities included changing some of the prevailing perceptions and attitudes among professionals of the many justice agencies, in order to reduce prejudice, negative stereotypes and stigma about young offenders and raise awareness about the need for child-sensitive and age-appropriate approaches. Law schools and training institutions are beginning to include child justice courses in their curricula. The net impact of these initiatives is unknown.

The Need for Data to Monitor the Impact of Reforms

Notwithstanding the early development of a set of juvenile justice indicators and associated guidelines (UNICEF and Ministry of Public Security, 2006), Vietnam does not yet have an integrated data management system capable of generating reliable statistics on young offenders and their experience with either the administrative or the criminal justice system. Child protection data are also very limited. Instead, the authorities responsible for child protection or the handling of children in conflict with the law collect data based on their functions and only report in accordance with the requirements of their own organization (Ministry of Justice and UNICEF, 2019). The collection and reporting of statistics on young offenders subjected to administrative fines and alternative measures to administrative handling measures remain very limited and so is the disaggregation of data by gender, age group and type of offence. Child justice reforms must therefore continue to proceed without proper feedback on their impact.

The effective implementation of comprehensive child justice reforms requires reliable data (Naylor and Tyson, 2017). Identifying good practices in child justice reforms requires access to reliable empirical information on crimes committed by children, the functioning of the child justice system, the impact of various interventions on children and their rights, and the effectiveness of the justice system in preventing crime and recidivism (Dandurand, 2011a).

Reliable and valid data are also important to determine whether reforms are having an impact, including unintended and unforeseen impacts. All systems depend to various extents on the exchange of feedback among their various components. Good monitoring system has the potential to create virtuous feedback loops, as opposed to resistance loops. Robust justice indicators are capable of generating a virtuous feedback loop to support organizational change and reforms in systems as complex as the criminal justice system (Dandurand et al., 2015).

Every reform initiative requires a comprehensive monitoring and evaluation plan. Implementation evaluations can examine the ways that existing organizational structures, processes and cultures either facilitate or impede programme implementation. Conducting a more formal implementation evaluation could help understand some of the obstacles encountered so far in the implementation of child justice reforms in Vietnam. The situation analysis recently conducted jointly by the Ministry of Justice and UNICEF (2019) identified some reform outcomes as well as some persistent weaknesses and in the child justice system. It is a step in the right direction, but there remains a need for specific evaluations.

Conclusion

There may not be enough in this article to draw a roadmap for a more effective and efficient implementation of child justice reforms in Vietnam. We hope, however, that practitioners will be able to use the information we provided to advance their planning and to develop specific strategies to address and resolve the reform implementation issues already identified. We also suggest that special attention be given to the collection of detailed and comprehensive data on the progress achieved in implementing the reforms and on the specific social, organization and logistical obstacles these reforms have encountered thus far.