Limitation on human rights in Vietnam: constitutional implications and enforcement perspective

(Clause 2, Article 14). This constitutional recognition ensures that human rights cannot be arbitrarily restricted by public authorities. This constitutional principle and other amendme[r]

LIMITATION ON HUMAN RIGHTS IN VIETNAM:

CONSTITUTIONAL IMPLICATIONS

AND ENFORCEMENT PERSPECTIVE

Le Quynh Mai1

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

A/Prof Dang Minh Tuan

School of Law, Vietnam National University, Hanoi, Vietnam

Abstract

The 2013 Constitution for the first time stipulates the principle of limitation on human rights: “Human

rights and citizens’ rights can only be limited in accordance with the law in case of necessity for

reasons of national defense, national security, order, and social security, social ethics, public health”

(Clause 2, Article 14) This constitutional recognition ensures that human rights cannot be arbitrarily

restricted by public authorities This constitutional principle and other amendments of the 2013

Constitution on human rights are among the most progressive provisions of the 2013 Constitution,

contributing to making the Vietnamese Constitution closer to constitutionalism and international law

Although state agencies, especially the National Assembly, have had certain positive changes in

referring and using the principle of limitation in the making of laws and regulations, the enforcement

of the principle has not yet been enforced fully in practice One of the main causes of this problem

is the absence of an effective constitutional protection mechanism This article will examine the

principle of limitation in the 2013 Constitution It also analyzes the problems of the implementation

of the 2013 Constitution.

This article will evaluate the principle of human rights limitation in the 2013 Constitution In addition to

analyzing the significance of the constitutional recognition of human rights limitation, this comparative

and current legal provisions analysis will allow us to answer the question if it has brought positive

practical changes in rights protection in Vietnam The article then concludes that the constitutional

principle of limitation cannot be implemented due to the lack of an effective constitutional mechanism

Keywords: Vietnam, 2013 Constitution, human rights limitation, constitutional protection.

1 This paper is a part of the doctoral thesis titled “Limitation of Human and Citizens’ Rights in Vietnam Law today / Giới hạn quyền con người, quyền công dân trong pháp luật hiện hành của Việt Nam)” that PhD Candidate LE QUYNH MAI is working on at the School of Law, Vietnam National University, Hanoi.

1 The recognition of the principle of limitation on human rights - an important constitutional development of human rights

1.1 The necessity to stipulate the principle of limitation on human rights in the 2013 Constitution

In Vietnam, although the issue of limitation on rights for preventing the arbitrariness of the State was mentioned by Vietnamese scholars in the amendment of the Constitution in 20011, this issue was first recognized in the 2013 Constitution The constitutional recognition of the principle on limitation

of rights is an important constitutional development on human rights in Vietnam The significance of the constitutional principle of limitation on human rights is well recognized for the following basic reasons:

First, the absence of the principle of limitation on rights causing the consequences to human rights

Before the 2013 Constitution, the principle of limitation on human rights was not recognized

in the Constitution or any laws Meanwhile, in terms of human rights and citizens’ rights, the

Constitution often stipulated that the rights shall be exercised “ shall be prescribed by law” The

term “law” with a very broad understanding in Vietnam gives many state agencies from the central to local levels the authority to promulgate legal documents under the Constitution to limit constitutional rights In addition to laws of the National Assembly, ordinances of the Standing Committee, many legal documents of the Government and even local governments were issued with the purpose of

“concretizing,” setting limitations on human rights and citizens’ rights Furthermore, these limitations

were restricted without any specific rule

Second, the constitutional principle of limiting rights expresses the standards of international human rights law and progressive constitutions in the world

In 1948, the United Nations also issued the Universal Declaration of Human Rights (UDHR)

and issued a general statement on the limitation of human rights in Article 29 “In the exercise of

his rights and freedoms, everyone shall 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.” In addition, democratic countries have stipulated limitation of human rights in constitutions

as early as the United States in 1789, Germany in 1949, China in 1982 (amended four times later), Russia in 1993 Therefore, Vietnam’s recognition of the principle of limitation on human rights in the

2013 Constitution is in line with constitutional thinking development and demonstrates Vietnam’s commitment to international treaties

1.2 Contents of the principle of limitation on human rights in the 2013 Constitution

The principle of limiting rights is recognized in the 2013 Constitution in two forms: (1) general rules of limiting human rights and citizens’ rights; (2) stipulating some limitations on a few particular

rights Specifically, the Constitution stipulates a general principle: “Human rights and citizens’ rights

may not be limited unless prescribed by law solely in case of necessity for reasons of national defense, national security, social order and safety, social morality and community well-being.” (Section 2 Article

1 Institute for Legislative Studies ‘Regulations on limitation of Human Rights, Citizens’ Rights – Actual Status and Solution’ (Scientific Reports) (Aug 2017).

14) In addition, the Constitution provides limitations on a few specific rights (as provided in Articles

30, 32, 54, 103) in accordance with the characteristics of these rights The limitations on these specific rights are made in accordance with the general principle stipulated in Article 14.2 of the Constitution

The terminology used to authorize limitations of rights for certain prescribed purposes is more or less similar to the democratic constitutions in some developed countries Similar, but not identical, grounds for restrictions are provided in Section 2 Articles 14 These restrictions must be: (1) prescribed by law, (2) in case of necessity Without a mechanism to explain the limitation clauses – in particular, whether an interference with a right is in compliance with the requirements set out in the limitation clause

- Prescribed by law

First, the limitation should be “prescribed by law.” International human rights instruments and national constitutions usually require the promulgation of certain law to place limitations on human rights1 The element “prescribe by law” known as the principle of legality which is a fundamental aspect of all international human rights instruments and indeed the rule of law in general It is a basic guarantee against the state’s arbitrary exercise of its powers In addition, the meaning of “law” implies certain minimum qualitative requirements of clarity, accessibility, and predictability2

The Constitution clearly stipulates that the limitation on rights must be enacted by “law”, which

is written by the National Assembly However, some of the Vietnamese scholars argued whether or not to what extent the term “law” as a “legal document”, not just an act of the National Assembly, but also a legal document of other state agencies3 In practice, the limitations on rights are regulated in many legal documents in Vietnam

The opinion of this article is the 2013 Constitutional requirement of limiting rights by law is in accordance with universal standards of human rights, and especially to meet practical requirements

in Vietnam

According to international practice, the issue of human rights is subject to fundamental laws Democratic Constitutions define the legislative and executive powers and only empower the legislative

power to limit human rights The executive power is essentially just “enforcing” legislative acts on

human rights The executive bodies may issue regulations on human rights, but this power means law enforcement The executive regulations are issued to enforce the law, but not to extend or set new limitations on human rights stipulated in the law The National Assembly may delegate legislative power to its Standing Committee of the National Assembly and the Government, but the legislative delegation is exercised within the limits and subject to the strict supervision of the National Assembly Some countries, such as Germany, require that basic rights are limited only by the law4, and may

1 See more International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 12(2), 18(3), 19(3), 21.

2 UN Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (28 September 1984), E/CN.4/1985/4 para 15, 16, 17 <http:// www.unhcr.org/refworld/ docid/4672bc122.html > accessed 2 January 2020.

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

3, and Nguyen Linh Giang, ‘Theoretical and Practical basis for the limitation of Human Rights in Vietnam’ (Scientific Reports) (Dec 2018).

4 Basic Law for the Federal Republic of Germany 1949 (last amended in 2019), art 2(3)(3) and art 5(2) According that

“delegate legislative power” to limit certain human rights In Russia, the limitation on rights and freedoms is regulated by the federal law and only to such an extent to which it is necessary required

by the Constitution of the Russian Federation.2

- “in case of necessity”

Second, the limitation must be a necessity to protect legitimate state interest Protection of

national defense, national security, social order and safety, social morality, community well-being, and rights and freedoms of others are some examples of legitimate state interest International human rights instruments and domestic constitutions contain these factors in their limitation clauses

The European Court of Human Rights has clarified that the term “necessary” is not synonymous with “indispensable,” nor is it as flexible as the terms “useful,” “reasonable” 3 The Human Rights Committee follows a similar approach In particular, the Committee explained in its General Comment

on Article 12 freedom of movement of ICCPR in paragraph 14, as follows “…Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective

function; they must be the least intrusive instrument amongst those which might achieve the desired

result, and they must be proportionate to the interest to be protected.”4 The same principles apply to the interpretation of Article 19 (freedom of opinion and expression) ICCPR5

The Constitution (2013) stipulates that the limitation of rights can only be exercised in case

of necessity To assess what is “necessity” and to define each type of necessity is a difficult task,

especially in the field of limitation on human rights This necessarily implies the conflict of interest between individuals and societies, for which the State and its functions and duties must have adequate interventions Laws limiting rights are necessary only when there is no other alternative that preserves legitimate state interest without interfering in the enjoyment of fundamental rights and the limitation should be applied as a last resort measure to minimize the impact of such limitation Noting that, the impact of the limitation of rights during a national security crisis should be proportionate and the resultant harm on the limitation of rights should not outweigh the purpose of the limitation

Article 14(2) of the 2013 Constitution uses a method to list necessary types, including: “reasons

of national defense, national security, social order and safety, social morality, and community well-being” These types are basically consistent with the common understanding of international law and

other countries However, Vietnam law still has not explained in detail about these types

Although there are still a number of different interpretations, international laws and states have a common understanding of the limitation on human rights based on three philosophies:

“These rights may be interfered with only pursuant to a law”; or “these rights shall find their limits in the provisions

of general laws, in provisions for the protection of young persons and the right to personal honor”.

1 Basic Law for the Federal Republic of Germany 1949 (last amended in 2019), art 80(1).

2 The Constitution of Russian Federation, art 55(3).

3 Handyside v the United Kingdom [1976] ECHR 48, 49

4 Office of the High Commissioner for Human rights, CCPR General Comment No 27: Article 12 (Freedom of Movement) <https://www.refworld.org/pdfid/45139c394.pdf > accessed 5 January 2020

5 United Nations, Human Rights Committee, General comment No 34 on Freedoms of opinion and expression < http:// www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf> accessed 5 January 2020

First, the principle of limitation recognizes that there is a conflict between the rights of one

person and the rights of another entity or the common interests of the community This is unavoidable because one person’s legitimate range of freedom is also the limitation of others’ freedom

Second, the constitutional limitations on rights are set out to apply to the development of specific

limitations on rights in the law This is also the basis for reviewing the constitutionality of the law

Third, the principle of limitation on rights is the need for a balance between the limitation of

rights and the protection of the rights of others or the common good This proportionality is also meant to limit constitutional limitation on rights

In addition, a legitimate limitation is under other requirements: in accordance with a democratic society; minimum application of human rights limitations to achieve the goal; limiting human rights must not detract from the nature of human rights; no limitation on absolute rights All of these requirements are based on a rights-based approach to ensure that human rights and citizens’ rights are respected, protected, and guaranteed by the Constitution and laws

2 Implementation of the constitutional principle of limitation on human rights: shortcomings and the problem of enforcement

2.1 The implementation of the constitutional principle of limitation on human rights in law-making

The constitutional recognition of the principle of limitation on human rights requires the responsibilities of state agencies in conducting legal reviews to ensure the constitutionality of legal documents This review should ensure two requirements: i) the limitations are required by law; ii) the limitations are proportionate to the necessary circumstances stipulated in the Constitution

As a national legislative organ, the National Assembly has made efforts in making laws on human rights As of June 2019, it has amended and promulgated 16 laws and ordinances on human rights, including many important ones on political and civil rights such as Law on Election, Law

on Referendum, Law on Access to Information, and Press Law; on economic, cultural and social rights such as Law on Enterprises, Law on Civil Status, Law on Citizenship Identification, Law

on Social Insurance, Law on Social Insurance, and Law on Health Insurance; on human rights in judicial activities such as the Criminal Code, Criminal Procedure Code, Civil Procedure Code, and Administrative Procedure Law.1 Legislative efforts of the National Assembly in the field of human rights have been made in order to implement constitutional rules on human rights, and at the same time to meet the requirement of enacting laws governing the field of human rights, especially on human rights limitations.2 Some areas which were previously regulated by executive regulations are now replaced by newly enacted laws such as Law on Referendum, Law on Access to Information, and Law on Belief and Religion

In the process of law-making, the issue of conformity of the law with Article (2) 14 of the Constitution

is considered one of the requirements In fact, the requirement of the constitutional principle of limitation

on human rights under Article 14 (2) is invoked in a number of projects of law on human rights or

1 The Vietnamese Government, Report on Preliminary Assessment of 05 Years of Implementing the 2013 Constitution (2014 – 2019) (22 August 2019).

2 The Vietnamese Government, Report on Preliminary Assessment of 05 Years of Implementing the 2013 Constitution (2014 – 2019) (22 August 2019).

directly affecting human rights For example, the Report of Law on Cyber Security stated the need to restrict human rights through cybersecurity measures The Proposal of Law on Access to Information cited Article 14 (2) of the Constitution as one of the necessities of the law

However, there are still some restrictions on human rights are in the laws with the aim of serving management needs (of state agencies)

The laws recognize a number of restrictions on rights as well as complicated procedures and conditions for the exercise of rights The laws provide a number of rights management mechanisms and methods, but they lack rights enforcement Furthermore, the rights are restricted due to the limited management capacity of State agencies

2.2 Establishing the enforcement mechanism

One of the core requirements for exercising the principle of limitation on human rights is the existence of an effective enforcement mechanism It is necessary to ensure and promote the National Assembly’s supervision over legal documents of State agencies, especially the Government, ministries and ministerial-level agencies At the same time, it is required to enhance the role of the courts in interpreting and protecting the Constitution and laws However, the key is to establish a constitutional jurisdiction Although the establishment of constitutional jurisdiction still faces many difficulties and challenges, the proposal to establish an independent constitutional council with limited power is one

of the most suitable solutions for Vietnam.1

In addition to developing an enforcement mechanism, it is important to interpret clearly the principle of human rights limitation and the procedures for implementing this principle One of the basic issues is to ensure the proportionality of human rights restrictions and the other interests that should be protected

The proportionality method is used as a tool to assure that the application of rights restrictions

is proportional to the other necessary interests When applying this method, public authorities must assure the restrictions as the proper purpose/legitimate aim; the appropriateness of restricting the rights with the purpose to be achieved; the necessity of a right restriction measure to achieve a goal; the balance between benefits gained and losses from rights restrictions.2 Accordingly, rights restrictions based on these requirements are constitutional

Conclusion

The adoption of the 2013 Constitution is an important development in the awareness of the rule

of law and human rights in Vietnam According to the rule of law, state power must be limited and controlled within the framework of the Constitution and laws One of the requirements for limitation and control of power is that the restrictions on rights are only imposed in necessary circumstances prescribed by the Constitution on the basis of a democratic society This universal principle was first recognized in the 2013 Constitution, and it is expected to play an important role in promoting and protecting human rights in Vietnam

1 See more Dang Minh Tuan, Towards a Constitutional Democracy in Vietnam: An Analysis of the Constitutional Amendment of 2013, in this Conference Proceedings.

2 Bui Tien Dat, ‘To constitutionalize the principle of limiting the human rights: Need but not enough’ (2015) LRJ 286 3 8-9.

Despite positive changes in the promulgation of legal documents, the recent legislative practice shows that the constitutional principle of human rights limitation has not been fully applied Some laws and ordinances still show the viewpoints to serve the management needs rather than citizen rights to control the constitutionality and legality of legal documents It is indispensable to establish

a constitutional jurisdiction to protect the Constitution

Therefore, the constitutional reforms in the coming years in Vietnam certainly need to focus on the issue of Constitutional and legal enforcement

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