Limitation clause of human rights in the 2013 Vietnamese constitution

Therefore, before the regulation of rights limitation, Article 14.1 declares that “In the Socialist Republic of Vietnam, human rights and citizens’ rights in the political, civil, econo[r]

Le Quynh Mai 1

PhD Candidate, School of Law, Vietnam National University, Hanoi

Abstract

The new Constitution of Vietnam was adopted by the National Assembly on 28 November 2013 and approved by 97.56% of the Assembly delegates For the first time in the Constitution history, the term “human rights” was used before “Fundamental Rights and Duties of Citizens” in Chapter

II (Chapter I: The political system) To underscore the importance, the value and the role of human rights and citizens’ rights, the Constitution and the State will consistently respect, protect and guarantee them However, the state has the power to veshict all constitutional rights by law in imperative circumstances for the reasons of national defense, national security, social order and security, social morality and community well-being (Article 14.2 of the 2013 Constitution) The authors argue that the limitation on rights are as important as recognizing and assuring them, as virtually no right is absolute in light of the need to balance individual and community interests.

This article is divided into two parts: the first part explores the achievements in recognizing human rights in the 2013 Constitution; the second part analyses the limitations of rights in Section 2, Article

14 of the Constitution of Vietnam and clarifies the correspondence between those limitations and the limitations in the International Human Rights Law By doing so, this article will answer the question: what achievements have the 2013 Constitution recorded regarding recognizing and limiting rights to ensure compliance with international treaties?

Keywords: limitation on human rights, human rights, the 2013 Constitution of Vietnam, Article

14.2 of the 2013 Constitution.

1 Achievements in the recognition and assurance of human rights in the 2013 Constitution

of Vietnam

Since gaining its independence in 1945, Vietnam has promulgated seven versions of the Constitution in the years 19462, 19593, 19804 19925, and 20136 The 1956 and the 1967 Constitutions

1 This paper is part of the doctoral thesis titled “Pháp luật về hạn chế quyền con người, quyền công dân ở Việt Nam hiện nay/ The law on limitation of human rights and citizens’ rights in Vietnam today” that Ph.D Candidate Le Quynh Mai

is working on at the School of Law, Vietnam National University, Hanoi.

2 Constitution of the Democratic Republic of Vietnam 1946 (adopted 9 November 1946) [ 1946 Constitution].

3 Constitution of the Democratic Republic of Vietnam 1959 (adopted 31 December 1959) [ 1959 Constitution].

4 Constitution of the Socialist Republic of Vietnam 1980 (adopted 19 December 1980) [ 1980 Constitution].

5 Constitution of the Democratic Republic of Vietnam 1992 (adopted 25 April 1992, amended 25 December 2001) [

1992 Constitution].

6 Constitution of the Socialist Republic of Vietnam 2013 (adopted 28 November 2013) [ 2013 Constitution].

promulgated by the Republic of Vietnam are not officially recognized Since the 1946 Constitution, although the term human rights is not used directly, articles in the constitutions have specifically discussed human rights1 under the name of citizen rights The content related to human rights is

expressed in Article 1: “Vietnam is a democratic republic All powers in the country belong to the entire Vietnamese people, regardless of their race, sex, economic condition, social class, and religion”.

Subsequent constitutions issued in 1959 and 1980 both included human rights in citizen rights, without making a separation between the two The 1992 Constitution used the term “human rights” for the first time, referring to it in Article 502 (i.e the principle of respect for human rights

in Vietnam) However, Article 50 of the 1992 Constitution was located in Chapter V, whose title is

“Basic Rights and Obligations of Citizens” This suggests that the “human rights” provisions in the

1992 Constitution only apply to citizens and thus, do not protect foreigners who may be residing or working in Vietnam3

Limitations in the recognition of human rights in the 1992 Constitution have been rectified in the 2013 Constitution With the view to promoting the human factor, under which human beings are the principal resources and goal of development, the new constitution of Vietnam has gained outstanding achievements in the recognition, respect, protection, and guarantee of human rights, which is elabourated below

Firstly, the 2013 Constitution renames the chapter on human rights and moves it after Chapter 1 (The political system) The discussion of human rights is located in Chapter 2, which has the following

title “Human rights, fundamental rights and obligations of citizens” This chapter in previous versions

of the constitution was named “fundamental rights and obligations of the citizens” The addition of

“human rights” shows the progress in constitutional thinking of Vietnam A new, more comprehensive

and profound awareness of the Communist Party of Vietnam (CPV) and the State’s viewpoint is reflected in the institutionalization which promotes the human factor and considers people as the masters, the major resources and the objectives of development

Secondly, the 2013 Constitution expands the scope of the entitlement beneficiary While the

term “human rights” was originally used with reference to “citizens” only in the 1992 Constitution,

in Chapter 2 of the 2013 Constitution the phrase “everyone” is mentioned at least 17 times besides the terms “no one”, “organization”, “personal”, “Vietnamese overseas” and “foreigners residing

in Vietnam” It is very important to recognize that everyone has rights, and that human rights are natural rights belonging to everyone and that citizen rights belong to persons who have Vietnamese citizenship

Thirdly, the 2013 Constitution recognizes a number of new rights that have been given with

1 The Constitution 1946 art 9 “Women are equal to men in every respect” and art 10, Vietnamese citizens have freedom

of speech, freedom of publishing, freedom of organization and meeting, freedom of belief, freedom of residence

2 The Constitution 1992 art 50 para (2): “In the Socialist Republic of Vietnam, human rights in all respects, political, civic, economic, cultural and social are respected, find their expression in the rights of citizens and are provided for

by the Constitution and the law”.

3 Giao Cong Vu and Kien Tran, ‘Constitutional Debate and Development on Human Rights in Vietnam: Asian Journal of Comparative Law Paper’ (2016) 235–262 AJCL <https://www.cambridge.org/core/journals/asian-journal-of-comparative-law/article/constitutional-debate-and-development-on-human-rights-in-vietnam/ A6A1C8D98079C8EC58D8222D8BB060B4/core-reader> accessed 28 Jun 2019

high consensus by National Assembly delegates, including the right to life (Article 19), the right to

donate human body parts and the human body (Article 20), right to privacy (Article 21), the right

to experience and approach cultural values, to take part in cultural life, and to use cultural facilities

(Article 41), the right to live in a fresh environment (Article 43), to name a few The recognition of

these new rights strongly affirms Vietnam’s commitments made in international treaties that Vietnam

is a member that protects human rights However, this new Constitution does not stipulate some of

the important rights provided in the two conventions on human rights1 to which Vietnam is a party

Some of these rights include the right not to be held in slavery and servitude (ICCPR, Article 8), the

right to recognition as a person before the law (ICCPR, Article16), and the right to hold opinions

without interference (ICCPR, Article 19.1), and so on This means that Vietnam has yet fully fulfill its

obligations under such treaties

Fourthly, the 2013 Constitution for the first time mentions the “mechanism of constitutional

protection” and defines people as one of the subjects who are defenders of the Constitution, and

opens the possibility of a mechanism to be stipulated and established by the law2 It can be observed

that Vietnam has not yet set up a professional mechanism for Constitutional protection to prevent

and overrule laws and by-laws issued by legislative, executive, and judicial bodies such as the

Constitutional Council or the Constitutional Court It emphasizes and expresses provisions which

state that laws on state apparatus that are promulgated later on and which stipulate in detail different

Constitution protection mechanisms to ensure the Constitution really becomes a “legislative god”

respected and protected by everybody, every organization, and agency3 Vietnam had no tradition of

having a written constitution to regulate such issues as the mechanism of constitutional control and

checks In fact, long before the 1990s, the idea of establishing a Constitutional review mechanism to

implement constitutional provisions and to protect individual rights has been researched extensively

in Vietnam This topic has again been debated during the constitutional drafting process up until now

Fifthly, the new Constitution has expanded the obligations of the state, stating that it is not only

to respect but also to protect and ensure human rights, as provided for in Articles 3 and 14 These

regulations might be a mere technical amendment, but it is, in fact, a significant change that shows

the state agencies not only comply with international human rights standards but also provide the

constitutional basis to seriously fulfill the state’s human rights obligations

Sixthly, the 2013 Constitution regulates the principle of human rights limitation4 This is a new

step in the constitutional thinking in Vietnam, which means that: (i) the state sets out and applies the

limits to some rights in order to secure and protect the rights and common interests of the community;

(ii) it prevents abuses of state power and violation of human rights through controlled conditions and

1 The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic,

Social and Cultural Rights (ICESCR)

2 The Constitution 2013 art 119(2) “The National Assembly, its bodies, The State President, the Government, the

People’s Courts, the People’s Procuracies, other State organs and the entire People are responsible to protect the

Constitution The mechanism of constitutional protection shall be provided by the law”

3 Nguyen Sinh Hung, ‘The revised Constitution is the firm legal and political guarantee for the entire Party, people

and army to join force in the march toward the new period’ (2014) CR <http://english.tapchicongsan org.vn/Home/

Politics/2014/799/The-revised-Constitution-is-the-firm-legal-and-political-guarantee-for-the.aspx> accessed 7

October 2019

4 The Vietnam Constitution 2013 art 14(2)

regulations which limit human rights; (iii) it prevents extreme actions in the enjoyment of rights.

2 Limitation of human rights under the 2013 Vietnam Constitution

2.1 Justification of the limitation on human rights

The human society is faced with the task of protecting the fundamental right and freedom so as to achieve a democratic government based on human rights It is recognized that the enjoyment of one’s rights can infringe on the rights of others It is also acknowledged that situations could arise in society

or nations where the enjoyment of rights can only be limited to a reasonable extent As a result, most constitutions2 assert that rights should be in no way absolute

The limitation of rights is acknowledged in the International Covenant for Civil and Political Rights (ICCPR) and other international human rights instruments According to those, the State parties may take measures to derogate from their obligations in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed3 The concept of rights limitations has been gradually acknowledged to be under the state control The difficulty lies in the way to restrain the power of state to limit rights Therefore, the mechanism to defend the constitution is the most important instrument to control the state power regarding the limitation of rights

In Vietnam, the limitation on human rights is a new topic which started to be discussed during the drafting of the amendments in the 2013 Constitution Previously many Vietnamese constitutional scholars already proposed adding content of limiting human rights to prevent abuse of state power in violation of human rights Under the 2013 Constitution, new content relating to human rights limits is

recorded in Article 14.2: “Human rights and citizens’ rights may not be limited unless prescribed by

a law solely in case of necessity for reasons of national defense, national security, social order and safety, social morality and community well-being”4 However, the 2013 Constitution does not provide

the rights that cannot be limited (absolute right) and those subject to possible limitations (negotiable rights) This is a difference in comparison to the Bill of Human Rights which stipulates absolute rights5, or the Constitutions of certain countries which specifiy rights that may be potentially absolute, namely the rights to human dignity, the right not to be tortured, the right to fair trial, etc

The above provisions on the limitation of rights clearly present the conception of Vietnamese constituents on the nature of human rights and civil rights Accordingly, human rights are natural, inherent, and not granted by another, but not all rights have absolute meaning and can be enjoyed absolutely in any circumstances Since people live and exercise their rights in a community, their enjoyment of rights cannot be opposite to, exclude or infringe on the rights of other individuals or the benefits of the community The State, in its functions, must respect and ensure human rights and civil rights, but at the same time it must ensure national security, social safety and the common interests

1 Trinh Quoc Toan, Vu Cong Giao, Implementing the constitutional rights in the 2013 Constitution, (Hong Duc

Publishing House, Hanoi 2015) 24

2 See more the South African Constitution, the Vietnam Constitution…

3 The International Covenant on Civil and Political Rights (ICCPR), Article 4(1).

4 See full text The Constitution of the Socialist Republic of Vietnam <http://extwprlegs1 fao.org/docs/pdf/ vie127527 pdf> accessed 8 October 2019

5 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) (ICCPR) art 7, 8, 11, 18

of the whole community As a result, the State has a dual role that creates a space for human freedom

but at the same time limits this space to a certain extent

Therefore, for the common good, in cases of necessity, human rights and citizens’ rights may

be limited As a fundamental law, the Constitution must be clearly outlined to constitutionalize the

principle of limiting human rights by:

(i) establishing criteria so that the right limits are correct, avoiding the arbitraries of the State’s

operation to eliminate, disable or reduce the meaning of the rights;

(ii) ensuring the true validity of the rights because the limitation on human rights and citizens’

rights should be taken as a last resort, when there is no other suitable solution;

(iii) acknowledging that restricting human rights is not a violation of rights but rather to create a

free space for each individual to enjoy their rights

In that spirit, the principle of limiting rights also aims to respect, protect, and ensure human rights

and civil rights Therefore, before the regulation of rights limitation, Article 14.1 declares that “In

the Socialist Republic of Vietnam, human rights and citizens’ rights in the political, civil, economic,

cultural and social fields shall be recognized, respected, protected and guaranteed in accordance

with the Constitution and laws”

2.2 Components of Human Rights Limitation Clause

Article 14.2 of the 2013 Vietnam Constitution is considered the limitation clause It has two

important aspects to be mentioned: (i) human rights and citizen rights limitation must be prescribed

by a law; (ii) the article provides the circumstances under which human rights and citizens’ rights may

be limited Indeed, many Vietnamese scholars have argued that the existence of a limitation clause

does not mean that these rights can be limited for any reason but can only be restricted for a justifiable

reason

2.2.1 Limitation must be by a law

The first fundamental aspect of Article 14.2 is that human rights and citizen rights “shall not

be limited unless prescribed by a law” This condition requires that the limit of the right must have

a clear legal basis, which must be: (i) the codes and laws (referred commonly as laws) which are

written by the National Assembly; (ii) sufficiently precise to enable people to regulate behavior; (iii)

providing the circumstances of rights limitation

The 2013 Constitution does not define what a “law” is This creates a danger of lack of uniformity

in the interpretation of the rights and their limitations One question arising via the use of “law” under

Article 14.2 is to what extent all legal documents adopted and promulgated by state agencies at all

levels1 – such as Decrees of the Government, Resolutions of the Justice Council of the Supreme

People’s Court, rules of a national body – apply to the legal basis to limit rights

It is clear that the word “law” is consistently present within the 2013 Constitution’s provisions

on specific rights These instances include: “Human life is protected by the law” (Article 19); “The

arrest, holding in custody, or detention, of a person shall be prescribed by a law” (Article 20.2);

1 the Vietnam Law on Promulgation of Legal Documents 2015 art 4

“The search of homes shall be prescribed by a law” (Article 22.3), etc Although local experts have

revealed their concern that using the expression “prescribed by law” is too narrow and unfeasible1 if rights are limited only by legislative documents of the National Assembly called “law” Most rights, however, are limited by laws

For some rights, the conditions for the exercise of these rights shall be prescribed by law that is known as legislative documents Examples are the rights to free movement and residence2, the right

to freedom of speech and freedom of the press, and the right of access to information, the right to assembly, the right to association, and the right to demonstrate3, and so on This indicates that the

2013 Constitution has been successful in defining, exercising and guaranteeing these rights It is understood that the exercise of the rights stipulated in Articles 23 and 25 of the 2013 Constitution can

be limited in accordance with the law under Article 14.2 – as well as under other legal documents Those include the documents that are not issued by the National Assembly such as non-statutory regulations, common law, and rules of a national body because they are all considered legislative documents

Regarding some other rights, their limitations are not stated in the 2013 Constitution provisions However, rights such as the right to privacy of personal information (Article 21.2), the right to freedom

of belief and religion (Article 24.1), the right to vote in referenda organized by the State (Article 29), the right to work and to choose their occupations, employment, and workplaces (Article 35), the right

to marry and divorce (Article 36), and so on are not absolute in nature Those rights may be restricted

by law, as inferred from Article 14.2 In this case, Article 14.2 shall apply as an additional term that

is not included in other articles of the 2013 Constitution

Logically, the 2013 Constitution should have had a definition of “law” It is therefore unclear whether “law” includes only laws made by state legislative bodies, or also includes regulations and directives made by the state executive bodies, or even policies of the State There has not been any guideline in this regard We also need to acknowledge that the mechanism of judgment on restricting rights is more important than the type of legislative documents that can limit these rights What we need to care about is how limiting the rights under a law ensures proportionality, or in other words, constitutionality.4

2.2.2 Limitation of rights must be in case of necessity

The second prerequisite is that the measure of rights limitation shall only be enacted “in case

of necessity.” Article 14.2 provides the circumstances under which the rights enshrined in the 2013

Constitution may be limited Many local observers argue that the existence of the limitation conditions does not mean that the rights in the 2013 Constitution can be limited for any reason Rather, they can only be limited in case of necessity for the reasons of national defense, national security, social order and safety, social morality and community well-being, which are justifiable reasons These legitimate

1 Bui Tien Dat, ‘To constitutionalize the principle of limiting the human rights: Need but not enough’ [2015] 286 LRJ

3, 6

2 The Vietnam Constitution 2013 art 23

3 The Vietnam Constitution 2013 art 25

4 Bui Tien Dat [2015] 286 LRJ 3, 6

reasons are present in international human rights laws and in many foreign constitutions In addition,

Article 14.2 also lists five reasons that the legislature should take into account when determining

whether a limit is reasonable and justifiable

Noting that national defense and security issues are the reasons for most nations to create barriers

and to restrict human rights, Vietnam is no exception Vietnam law has the concept of national defense2 and national security3, the same as that in many countries Interestingly, the authority to

limit human rights with regard to the reasons in Article 14 of the 2014 Law on National Security

(e.g., security protection, idealism and culture, ethnic solidarity, rights and legitimate interests of the

agency, organizations and individuals) is fairly broad in comparison to the international standard

This creates the risk of abuse when limitation is imposed for national security reasons

In addition to this, the reasons for limiting human rights for the sake of social morality and community well-being are not clearly defined in legal documents Although the Standing Committee

of the National Assembly has powers to interpret the Constitution, laws and ordinances4, it has in fact

never raised this issue Vietnam’s approach to these reasons is generally understood to be the same as

that in many other countries Specifically, the reason for maintaining social order and safety is often

understood in a narrow sense and seems to be associated only with struggle, prevention and fight

against crime

It can be seen that the “necessity” creates large spaces for state agencies to operate within their

jurisdiction and is the limit for regulations that aims to limit the rights Thus, in order to test the

validity, the proportional method is so important that it cannot be ignored when formulating regulations

on rights restriction because the limitation of rights is to reach the balance and harmonization of

related benefits This method has certain flexibility so it can be adjusted in accordance with specific

circumstances of each country The proportional method offers a four-step test that is consistently

applied to all non-absolute rights The assurance test must be done from step 1 to step 4 If the right

restriction passes the four stages, it is considered constitutional If it fails at any stage, the test stops

without a further evaluation at a later stage, and as a result, the restriction of that right is declared

unconstitutional5

The proportional method is believed to have originated from German administrative law in the

late 18th century and is widely adopted in the European Union legislation and in many countries

1 According to Article 29(2) of the Universal Declaration of Human Rights (UDHR), human rights can be subject only

to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the

rights and freedoms of others and of meeting the just requirements of morality, public order, and the general welfare

in a democratic society A similar provision can be found at Article 4 of International Covenant on Economic, Social

and Cultural Rights (ICESCR)

2 According to Article 2(1) of Law on National Defense 2018, National defense is understood as the task of defending

the country by the combined power of the entire nation, in which the military power is characteric and the People’s

Armed forces are the core

3 Vietnam’s national security is often described with the concept of “Fatherland protection” (Bao ve To quoc) According

to Article 3(1) Law on National Security 2004, National security is the stability and sustainable development of the

Socialist regime and the Socialist Republic of Vietnam, the inviolability of independent infringement, sovereignty,

unity, territorial integrity of the country.

4 The Constitution of Vietnam 2013, act 74(2)

5 Bui Tien Dat, [2015] 286 LRJ 3, 6

outside Europe This method has proven superior in many countries, but relatively new in Asia Until now, only a few countries and territories in Asia have applied this method, for example, Korea, India, and Hong Kong In Vietnam, this method is unfamiliar with the theory of rights limitation However, this method will be very valuable if it is applied for the evaluation of the issue of “necessity” in Vietnam in the coming years

Although the highest state power body of the Socialist Republic of Vietnam2 is yet to come

up with an approach to interprete Article 14.2 of the 2013 Constitution, it needs to establish that

the phrase “in case of necessity” should be understood in relation to a pressing social need, and

is proportionate to the legitimate aim pursued It will be very interesting to see how the Vietnam legislature will interpret this provision

The phrase “in case of necessity” implies a conflict of interests between an individual and the

state in a democratic society This is inevitable because protecting one person’s rights is also the limitation of the freedom of others The State must persuade other entities (Courts) of the existence

of the necessary circumstances which would permit the state to interfere with one’s enjoyment of the rights It should be noted that the purpose of Article 14.2 is to assess the issue of restricting human rights, but it is not the only document focusing on this issue Human rights can also be limited

for broad reasons under Article 15.4 of the 2013 Constitution, which provides that “the exercise of human rights and citizens’ rights should not infringe upon national interests and others’ lawful rights and interests.” Thus, the reasons for limiting rights are to ensure the legal rights of others and their

legitimate interests

The authors argue that the limitation of rights, which is sometimes required, must be written down in “law”, instead of legislative documents, to prevent the customization by legislative, executive and judicial bodies This asserts that the 2013 Constitution sets a very high standard for human rights protection mechanisms The State can limit the exercise of these rights for valid reasons, including the need of protecting national interests and others’ lawful rights and interests, as long as it acknowledges

a number of conditions

3 Concluding Remarks

Although the 2013 Constitution has achieved great progress in recognizing human rights, in comparison with international human rights treaties and constitutions in some other countries, the

2013 Constitution of Vietnam still does not contain certain above-mentioned rights, which should

be added Although some rights are not recognized in the 2013 Constitution, it does not mean that these rights are not to be protected by Vietnamese law For instance, before 2013, the right to life was not constitutional but it was still protected in Vietnam However, the right to life is still limited via different legislative documents under the Constitution In particular, the provisions of the Penal Code have allowed the State to deprive somebody of the right to life through the death penalty Furthermore, the right to silence is not present in the 2013 Constitution but is recorded in the Vietnam

1 Carlos Bernal Pulido, ‘The Migration of Proportionality Across Europe’ (2013) 11 New Zealand Journal of Public and International Law 483 491.

2 According to Article 69 or The Vietnam Constitution 2013, The National Assembly is the highest representative body

of the People and the highest state power body of the Socialist Republic of Vietnam

Criminal Procedure Code 2015 Nevertheless, the 2013 Vietnam Constitution needs to supplement

a provision about the default recognition of fundamental rights, in order to reduce the risk of the

Constitution failing to recognize, control and limit those rights when drafting and amending laws, as

well as enforcing its executive power

A number of constitutions in the world have automatically recognized fundamental rights by

stating that: that a right is non-constitutional does not mean that it is not protected by law2 Given

the status of the current Vietnamese legislation, the lack of constitutional rights is not a very serious

problem, because after all, the Constitution cannot fully constitutionalize all human rights, while the notions of human rights continue to develop However, in a country like Vietnam where the constitutional interpretation of the Court is still very limited, and there has not been a separate mechanism to protect the Constitution, not constitutionalizing fundamental rights may reduce the

likelihood of such rights being recognized and protected in practice Although a failure to make a

right does not equate with a restriction on that right, the unconstitutionality of a right may lead to

the existence of an arbitrary legislature restricting the right (because there is no constitutional basis

for collation) Also, it is likely to bring about the perspective that such rights do not exist in Vietnam

because they are not specifically recorded in the Constitution and laws

The limitation on human rights under Article 14.2 of the 2013 Constitution applies only to rights limited by a law Those rights which are overtly limited in the 2013 Constitution, for example,

regulations on “taking revenge on abusing the right to complain and denunciation to slander or falsely

accuse others” and holding “a closed hearing” by the People’s Courts3, are not the concern of Article

14.2 The principle of rights limitation sets out to prevent unconstitutional provisions located in a

legal text under the Constitution such as a law, government decrees, etc

In addition, some rights are limited with stricter standards than the reasons stated in Article

14.2 For example, the right to property ownership is limited only when “in case of extreme necessity

for national defense or security reasons or in the national interests, in a state of emergency or in

response to a natural disaster”4 Similarly, the right to use land is limited when the state recovers

“in case of extreme necessity prescribed by law for national defense or security purposes; or

socio-economic development in the national or public interest”5 The 2013 Constitution sets the “extreme

necessity” standard for limiting those rights (in comparison to the “necessary” in Article 14.2) and

the circumstances for limiting them are more specific than those in Article 14.2 It means that limiting

those rights should be considered more carefully than limiting other rights

1 The first time the 2015 Criminal Procedure Code of Vietnam has noted the right to silence of suspects and defendants

indirectly through content of Article 60(2)(d) and Article 61(2)(h): Give statements and opinions, bear no obligation

to testify against themselves or admit to guilt.

2 According to The Ninth Amendment, the United States Constitution 1791 “the enumeration in the Constitution, of

certain rights, shall not be construed to deny of disparage others retained by the people”; and the Constitution of the

Russian Federation 1993, article 55 (1) “The listing in the Constitution of the Russian Federation of the fundamental

rights and freedoms shall not be interpreted as a rejection or derogation of other universally recognized human rights

and freedoms.”

3 The Constitution 2013 art 30(3) and art 103(1), (3)

4 The Constitution 2013 art 32(3)

5 The Constitution 2013 art 54 (3)

It is necessary for the independent mechanism to have sufficient rights to assess the restriction

of human rights According to the experience of other countries, the Constitutional Court is most effective as a “guardian” of the constitution It safeguards the constitutionality of the conduct of the State and its organs However, in Vietnam, there has not been a dedicated constitutional protection agency on which each state agency bases its functions and duties to perform the responsibilities to defend the 2013 Constitution whose center is the National Assembly and its agencies The mechanism

to defend the Constitution in Vietnam is left open and should be provided by the law

The authors acknowledge that Vietnam has implemented two of the four pillar principles in the mechanism of human rights assurance The four principles include: (1) need to recognize fundamental rights and liberality in the Constitution; (2) constitutionalize the principle of limiting the human rights; (3) apply doctrine to ensure the proportionality of restricting the rights; (4) build an effective mechanism for judgment on rights restriction The (1) and (2) principles have been clearly shown in the 2013 Constitution, but the (3) and (4) ones are almost not mentioned We need to recognize that

in order to have principle (4) implemented, we need principle (3) as the tool, which also serves as a basis to prevent the arbitrariness of the lawmakers when giving explanations for the necessary cases

in favour of these entities

In conclusion, the constitutional history of Vietnam and the achievements regarding the

recognition of human rights in the 2013 Constitution have been showing the viewpoint of CPV and the state towards enforcing international human rights conventions They are also ensuring and protecting human rights, which have become both an objective and a motivation for Vietnam’s national development in the period of global integration However, due to the complexity of human rights limitation issues, Vietnam needs to explain the principle of restricting human rights in Article 14.2, followed by the interpretation of international human rights treaties as well as the general concept in the constitutions of countries which have “proportionate to the legitimate aim pursued.”

References

Carlos Bernal Pulido, ‘The Migration of Proportionality Across Europe’ (2013) 11 New Zealand Journal of Public and International Law 483 491

Constitution of the Democratic Republic of Vietnam 1946 (adopted 9 November 1946) [ 1946 Constitution]

Constitution of the Democratic Republic of Vietnam 1959 (adopted 31 December 1959) [ 1959 Constitution]

Constitution of the Socialist Republic of Vietnam 1980 (adopted 19 December 1980) [ 1980 Constitution]

Constitution of the Democratic Republic of Vietnam 1992 (adopted 25 April 1992, amended 25 December 2001) [ 1992 Constitution]

Constitution of the Socialist Republic of Vietnam 2013 (adopted 28 November 2013) [ 2013 Constitution]

Dat Bui Tien, ‘To constitutionalize the principle of limiting the human rights: Need but not enough’ [2015] 286 LRJ 3, 6