Contradiction between openness, transparency, accountability and confidentiality of information in vietnamese law

CONTRAD CT ON BETWEEN OPENNESS, TRANSPARENC ,ACCOUNTAB L T AND CONF DENT AL T OF NFORMAT ON N V ETNAMESE LAW LLM Nguyen huong Vyl Int oductions Publicity, t anspa ency, and accountabilit

CONTRAD CT ON BETWEEN OPENNESS, TRANSPARENC ,

ACCOUNTAB L T AND CONF DENT AL T OF NFORMAT ON

N V ETNAMESE LAW

LLM Nguyen huong Vyl

Int oductions

Publicity, t anspa ency, and accountability act as basic and essential elements of the mode n gove nance model These te ms ca y the minds ofits c eato s ith the goal

of establishing and maintaining an open, t anspa ent info mation system This is also consistent ith the inevitable t end of the cu ent 4 0 indust ial evolution In ecent yea s, tens of thousands of Vietnamese business have sta ted and built thei business models th ough the basics of connectivity and sha ing Connection and sha ing also becom the basic keythat the p ivate secto ca es about and expectmost f om the political system, especially the gove nment, minist ies, b anches, and management levels f om cent al to local levels, openness, t anspa ency, and accountability a e the key tools to suppo t connection and sha ing in the modem state model Connection and sha ing

he e a e conc etized by solutions that cont ibute to the cla ification and smoothness of info mation and data among state agencies as ell as bet een state agencies, people, and ente p ises Ho eve , the fact that info mation is easily accessible and sp eading, has had many consequences The e a of technology and digitalization seems to have made info mation secu ity mo e f agile than eve The info mation of an individual

o a legal entity leaking out can lead to unfo eseen physical and mental damage A cont adiction a ises bet een the theo y of connection-sha ing and the existence of seemingly undisclosed types of info mation The question is hethe o not the e is a conflict of la s bet een openness, t anspa ency and accountability, and the ight of

Institute o f trategy and cience inspectorate, overnment Inspectorate

info mation confidentiality, specifically in the cu ent context of Vietnam? This a ticle cont ibutes to ans e ing that question

Legal bas s of d sclosure, tra spare cy, accou tab l ty a d co f de t al ty

of format o

1 International legal basis

a) Disclosure, transparency and accountability

The issue of disclosu e and t anspa ency has been mentioned since ancient Roman times, but the method and pu pose ofusing these tools e e quite diffe ent f om

no adays Roman institutions of gove nance conducted a civil society investigation, hich as maintained and a anged acco ding to the economic and political hie a chy and the numbe of t oops held by membe s of society Consciousness about the investigation and captu e of social info mation as evived in the Renaissance, as mentioned in the “Six Books of the Republic” This activity as aimed to cont ol the activities and customa y la insociety and the su plus of the ealth of the nobility, and at the same time, fight co uption on the basis of t anspa ency in gove nance activities The thought of app oaching and using the elements of openness and

t anspa ency at that time is ve y inte esting It can be oughly unde stood that the ancient state used these tools to captu e clea ly and mo e tho oughly hat happened

in society and cont olled society to se ve gove nance activities Ho eve , it also has a

t o-fold meaning because t anspa ency of info mation about the people and society ill also cont ibute to monito ing the activities of state officials themselves This logic is o th ponde ing, because it seems that the te m openness, t anspa ency and accountability no tend to efe to the state management agency Section 2 of the

a ticle ill etu n to the question of hethe the e is a esponsibility to a ds openness,

t anspa ency and accountability fo the p ivate secto sub ects

In 776, S eden established a membe of the Pa liamenta y office of the local udicial and administ ative cont ol committee (Ombudspe son), the eby tu ning ove and developing the concept of openness in the di ection of the State to the people A statute as enacted that stipulates the ight ofpeople to have access to documents held

by administ ative agencies

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Be n, D Gouve ne sans gouve ne une a chéologie politique de la statistique, Pa is, P esses unive sitai es de

F ance (200 )

The F ench Revolution, afte its success in 7 , int oduced the “Official Gazette” egime, he eby all la s, dec ees o egulations of the State as a hole had to be made public to the people based on the ule “no one is excluded f om the la ” The Official Gazette egime has been maintained and enfo ced until this day fo all legal documents

as ell as legal t ansactions The evolutiona y state also ensu es the public disclosu e

of debates among Councils of the State

The La on openness, T anspa ency, and Accountability as taken to a ne level in the 20th centu y In the USA, the F eedom ofInfo mation Act of 66 as ecognized as one ofthe fi st legal documents elated to t anspa ency ofdocuments and administ ative documents issued unde P esident Lyndon B Johnson This la as d afted in the context of a time henu s autho ities e e unde a lot of p essu e f om people asking

fo info mation Ame icans at that time had a g eat need fo accessing documents elated

to issues that the u s Gove nment as dealing ith, including info mation about the Vietnam Wa The inhibition of access to info mation accumulated afte the long pe iod

of time, and thus “blind info mation” led to consequences so that not oniy no mal state gove nance activities but also public policies on fo eign affai s became topics about hich people began equi ing disclosu e and t anspa ency

In mode n time, disclosu e, t anspa ency and accountability a e issues being mentioned a lot in the la of nations In pa ticula , in some count ies, disclosu e,

t anspa ency and accountability have been elevated to become a sepa ate la F om

a domestic la pe spective, the UK has the T anspa ency La of local gove nment in

20 5 2The main contents of this la include: Info mation to be disclosed, Info mation ecommended fo publication, a summa y of all info mation to be published, F aud detection and p evention and the publishing of Social Housing P ope ty Data Fo

S eden, openness and t anspa ency a e impo tant foundations in the count y’s democ atic society The e a e fou basic la s establishing the S edish Constitution: the Inst ument of Gove nment, the F eedom of the P ess Act, the Basic La of

F eedom of Exp ession (the Fundamental) La on F eedom of Exp ession, and the Act of Succession 3 These la s a e second only to the Constitution, and they take

Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce.,. _

Alexand e Pi aux, he double role of transparency in administration (La double natu e de la t anspa ence dans I’administ ation), CRAIG (Cente đe Reche che en Action publique, Intég ation et Gouve nance) (20 5) 2T anspa ency La of local autho ities (20 5)

3 S eden se, ‘openness SHAPES SWEDISH SOCIET ’ ( weden verige, June 28, 20 8) < https://s eden se/ society/openness-shapes-s edish-society/?fbclid-I ARl RA2dCeST 7fsJ Xu ucBZBsAFP iVdc5bW

OIkl-7 4e gs po >Access Updated on Septembe 6,20

p ecedence ove othe legal documents in S eden These la s a e often found ve y

ea ly in Eu opean count ies, he e equality, openness and accountability a e enfo ced

to a ds a t anspa ent gove nment

Openness and t anspa ency a e mentioned a lot in the UN Convention against Co uption such as publicizing p ocu ement p ocedu es and p ope ty

p ocu ement cont acts; publicizing financial statements and accounting standa ds, auditing; publicizing banking, financial, comme cial o confiscated eco ds; publicizing copies ofgove nment eco ds, documents o info mation, etc Fu the mo e, it equi es

t anspa ency in the public secto ; t anspa ency in allo ing candidates to ente public offices as eli as funding political pa ties; t anspa ency and p evention of conflicts of inte est; t anspa ency in public finance management esponsibilities; t anspa ency in accounting eco ds,vouche s, financialstatementso othe documents elatedto evenue and expenditu e, and p evention of the fo ging of these documents; t anspa ency bet een p ivate o ganizations; t anspa ency in decision-making p ocesses, etc This confi ms that the inte national community has also ecognized the meaning

of openness and t anspa ency in ensu ing the social supe vision of the exe cising of public po e 2The above UN Convention also p ovides the public as app op iate -info mation on the o ganization, the p ocess of implementation, and decision making

of thei count ies, as ell as info mation aboutdecisions and legal acts elated tồ the public 3Cu ently, the La on the F eedom of Info mation is enacted in 82 count ies and te ito ies a ound the o ld 4

b) Right to confidentiality of information

Despite existing fo a long time, the inte national conventions and la s of some count ies mainly stipulate on p ivacy, ith only a fe egulations on p ivacy and confidentiality of info mation In gene al te ms, p ivacy is the ight to p otect the life of individuals ithout the access o disclosu e of info mation by othe individuals and o ganizations The basic content of p ivacy includes p ivacy of

PROCEEDINGS OF THE INTERNATIONA! WORKSHOP Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce

United Nations Convention against Co uption (2003)

2Nguyen Tuan Khanh, ‘Openness and t anspa ency in the public secto in ou count y today* in the Wo kshop Document on legal issues in anti-co uption in Vietnam today (20 ), p 73

3United Nations Convention against Co uption (2003) A ticle 0, point (a)

4 Wikipedia, ‘F eedom of info mation la s by count y’ < https://en ildpedla o g/ iki/F eedom_ of_info m ationmia s_by_count y?fbclid=I AR2gG3M xkNp7zG G7bRM L6d5PKttm „UqPW dEFh-FOea8 GOV7FvVJoAbAl U > accessed Septembe 6,20

pe sonal info mation, body, contact info mation, and esidence Rega ding the ight

to info mation confidentiality, the e has been no conceptual text, but in te ms of the visible semantics, the content of p ivacy is b oade than the content of the ight to info mation confidentiality The efo e, e can exploit the p ivacy egulations in some inte national conventions Inte national conventions on civil and political ights take effect on the te ito y of Vietnam The efo e, eve y individual is p otected by the State of Vietnam ith ega ds to thei p ivacy in pe sonal life, family, esidence, and

co espondence, specifically:

The Unive sal Decla ation of Human Rights 48 (UDHR), A ticle 2 notes:

“No one is sub ect to a bit a y inte fe ence ith p ivate life, family, esidence o

co espondence, no can thei hono o pe sonal p estige be insulted; eve yone has the ight to be p otected by against such inte fe ence and inf ingement”

Inte national Covenant on Civil and Political Rights (ICCPR), A ticle 7 states that: “No one is a bit a ily o illegally inte fe ed ith in p ivate life, family, housing, co espondence, no can the e be an illegal inf ingement of thei hono and

p estige Eve yonehasthe ighttothep otectionofsuch inte fe enceo inf ingementbyla

F om the above p ovisions, it can be infe ed that the info mation confidentiality

p otected by t o inte national la documents above, is the sec ets of pe sonal and familial info mation, esidence and o kplace, and inte -info mation; hich a e

p otected f om all inte ventions such as collecting and dist ibuting; monito ing and inf inging on esidential and o king places; int uding, cont olling, tampe ing in communications, etc

2 2 Domestic legal basis

a) Disclosure, transparency and accountability

Due to specific facto s f om histo ical ci cumstances, the te ms disclosu e,

t anspa ency and accountability appea elatively late in Vietnam The most common notion of people's ight to info mation as fi st ecognized in A ticle 6 of the 2 Constitution, unde hich “citizens have the ight to f eedom of speech and f eedom

of the p ess; have the ight to info mation in acco dance ith the la ” In the 20 3 Constitution, this ight as enamed to “ ight to access to info mation” (A ticle 25)

Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce

Duong Gia La , ‘Regulations on the ight to p ivacy in p ivate legal documents’ < https://luatduonggia vn/ quy'dinh-ve-quyen-bi-mat-doi-tu-t ong-cac-van-ban-quy-pham-phap-luat/?fbclid=I AR05 RDnH7SLn-dnqhMsB3NTARuvS0-RNyPvVAc- lxDVGPW uGS HMVnc > accessed Septembe 2 ,20

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In conc etizing the p ovisions of the Vietnamese Constitution, implementing the Communist Pa ty’s policies, and at the same time inte nalizing a numbe of

p ovisions of inte national t eaties to hich Vietnam is a membe , many legal documents have been issued that contain egulations on the ight to info mation and esponsibilities of state agencies in the p ovision of the info mation held by state agencies (envi onmental info mation, planning info mation, const uction, land, p o ects, hygiene, food safety, budget spending, etc ) Such documents include: the P ess La of 8 (amended and supplemented in ); Dec ee No

the Gove nment p omulgating the Regulation on the exe cise of democ acy in communes; the O dinance on the exe cise of democ acy in communes and a ds and to ns in 2007; Decision No 8 /2003/QD-TTg of Septembe 4 2003 of the

P ime Ministe , p omulgating the Regulation on implementation ofthe “one-doo ” mechanism at the local state administ ative agencies; the La on P omulgation of

No mative Documents in 20 5; La on Publication 20 2; La on Auditing 20 5;

La against Co uption 20 8; La on Th ift P actice and Waste Combat in 20 3,

La on Housing in 20 4, etc, Late issued egulations on openness, t anspa ency and p ovision of info mation by state agencies in legal documents a e clea e and

mo e specific than p evious ones The most p ominent stage in implementing info mation ights into the institutional system as the passing of the La on Access to Info mation No 04/20 6/QH 3 on Ap il 6 20 7 hich came into effect on July 20 8 The La contains 5 chapte s and 37 a ticles Acco ding

to it, all citizens a e equal and the e ill be no disc imination hen it comes to access to info mation At the same time, the La also lists 4 types of info mation that a e publicly accessible and the types of info mation that a e not accessible (meaning that it cannot be made public) In addition, Dec ee NO 3/20 8/ND-CP

p ovides detailed egulations and measu es to implement the La on Access to Info mation; Ci cula NO 46/20 8/TT-BTC detailing actual expenses fo p inting, copying, photocopying and sending info mation specified in Clause 2, A ticle

2 of the La on Info mation Access; Ci cula No 64/20 8/TT-BQP Stipulating the p ovision of info mation in the Minist y of Defense, Ci cula No 02/20 / TT-BNV stipulating the standa ds of input data and equi ements fo sto age

of a chives On Janua y 24, 20 , the egulations on p ese ving the database of

a chives, etc also mentioned a lot about info mation secu ity and esponsibilities

of info mation manage s

In summa y, the cu ent la s of Vietnam have been establishing the basis of a

ce tain legal system elated to openness, t anspa ency and accountability of agencies,

o ganizations and state units The issue to conside is ho these tools a e being implemented in eal life

b) Right to confidentiality of information

In the cu ent legal system of Vietnam, the e is no te m “ ight to info mation confidentiality’’ Ho eve , in the aspect of pe sonal info mation, the p ivacy and the

p ivate sec et of each pe son is p otected by la , making it inviolable

The 2 Constitution stipulates that citizens have the ight to inviolability of accommodation; mails, telephones, teleg ams a e ensu ed to be safe and confidential; access to and use ofthese modes oft ansmission of info mation as ell as the sea ch of othe people’s esidence must be conducted in acco dance ith the la Thus> in te ms

of p ivacy, the 2 Constitution only stipulates the ight of safety and confidentiality

of mails, telephones, teleg ams, but not the ight to pe sonal info mation Ove coming these est ictions, A ticle 2 of the 20 3 Constitution stipulates: “Eve yone has the ight to inviolability of p ivate life, pe sonal sec ets and family sec ets; have the ight

to defend the hono and p estige ” In addition, this stipulates that familial confidential info mation is p otected by ia and affi ms that eve yone has the ight to the inviolability of familial sec ets

Afte the Constitution, the ight to confidentiality is mentioned in the Civil La , hich is attached to the concept ofa mo e b oad sense than the ight to pe sonal sec et The eme gence of this concept is an impo tant highlight, eflecting the vie point and level of Vietnamese legislatu e in the mode n pe iod Acco dingly, human facto s, human ights as featu ed th ough implementation assu ance tools, eflecting the

co e natu e of the ule-of-la state of the people, by the people and fo the people

A ticle 38 of the 20 5 Civil La stipulates the ight to p ivate life, pe sonal sec ets, and family sec ets This can be conside ed as a esult ofthe p ocess of codifying the human ights elements stipulated in inte national conventions in combination ith civil ights

p ovisions in the basic la s in Vietnam P ivate info mation of individuals becomes

an institution p otected by p ivate la not only ithin the te ito y of the count y, but also in the case of a stay (even if no esidence is equi ed) at othe count ies In the

e a of the digital technology boom, the ight to info mation confidentiality is not only confined to a count y but also a global issue

Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce _

The ight to confidential pe sonal info mation is also mentioned in anothe impo tant legal document, hich is the P ess La Clause 3, 4, A ticle 5 of Dec ee

5 /2002/Dec ee-Gove nment stipulates: “Do not post o b oadcast pictu es of

an individual ithout explicit captions o affect the eputation and hono of that individual ” The P ess La 20 6 also stipulates one of the p ohibited behavio s is:

“disclosing info mation on the list of State sec ets, p ivate p ivacy of individuals and othe sec ets as p esc ibed by la ’’

The 2005 Anti-co uption La stipulates the t anspa ency ofp ope ty obligations

of civil se vants and those ho must decla e thei s in acco dance ith the la , it also emphasizes the ight to “ensu e the confidentiality of the contents of asset and income decla ation in acco dance ith la ” (A ticle 7 Anti-co uption La 2005)

In addition to the afo ementioned documents, the ight to p ivacy a e also mentioned in a numbe of othe specialized legal documents such as the Publication

La , the La on the P otection of People’s Health, the Code of Civil P ocedu e and the Code ofC iminal P ocedu e, the Tax Administ ation La , La on p evention and cont ol ofvi uses that cause human immunodeficiency synd ome (HIV/AIDS), La

on Denunciations, La on Info mation Technology, La on Info mation Secu ity,

La on Elect onic t ansactions, etc Ali of them c eate a legal basis to ensu e the

p ivacy of individuals

2 D sclosure, tra spare cy, accou tab l ty a d format o co f de t al ty pract ce V et am

2.1 T e co fl ct betwee d sclosure, tra spare cy, accou tab l ty a d t e r t

to pr vacy a d co f de t al ty o fperso al format o t e law o f V et am

The goal of disclosu e, t anspa ency and accountability is to ensu e that info mation is no longe in the da k, hile the la p otecting p ivate p ivacy defines the natu e of non-disclosu e, disclosu e and decla ation of these types of info mation

The e a e many types of info mation in the la that belong to the catego y

of pe sonal sec ets p otected by the State, such as mails, teleg ams and telephone calls, familial sec ets, sec ets of p ivate life, etc Among them, the most sensitive issue hich can come into conflict ith egulations of t anspa ency, disclosu e and explanation is the sec et of p ope ty info mation

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Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce

Although the la s ofVietnam and those of many count ies a ound the o ld do not di ectly stipulate that p ope ty info mation is classified as an individual's sec et,

in eality, ho eve , it p oves to be one of the most impo tant types of info mation that people do not ant to disclose If a financial expe t e e asked about the sec et

of ealth, they ould ans e : The e is no sec et; ealth is the esult of o king

ha d and saving eve y penny This statement is in cont adiction ith hat e might conside as expected, o the no m, namely that if you have a lot of money, you ill spend a lot, as ell Ho eve , this does not seem to be the case in eality - many-ich people in the o ld today have a simple life and even live f ugally It seems idiculous that people ith lots of money don’t like to spend money Ho eve , this can be having many easons: in pa t, fo one, hen you have a huge fo tune, the value that you a e inte ested in, is no longe limited to the mate ial Anothe mo e impo tant eason is that most people do not ant othe s to kno ho much money they have o ho much p ope ty they o n This a gument becomes mo e pe suasive

fo those hose appa ent ealth society does not believe to be ep esentative of thei actual ealth In Vietnam, no one doubts the legacy of Bill Gates, Wa en Buffet o

mo e ecently* the o ne ofVing oup, Pham Nhat Vuong But many people question the ealth of a civil se vant o a community official in thei a ea P ope ty of state officials and employees is the fi st point of the conflict of la s: t anspa ency o

p otection of p ope ty confidentiality?

P ope ty t anspa ency of officials and public se vants has been a conce n of society ecently Human society today is dominated by digital technology, in hich the speed and scale of info mation sometimes sp ead beyond the capacity of human cont ol Even if the la of Vietnam did not stipulate t anspa ency of assets and income that is mandato y fo officials and public se vants* the people, to some extent, in diffe ent ays, can “hunt* and “ udge” ho ich an official A o B is Fo example, public opinion once sti ed up ith the sto y of a numbe of leade s and fo me leade s o ning a ealth of assets such as the 22-yea -old Deputy Gove no of the State Bank, ho o ned a p ivate palace in Ho Chi Minh City hich is a fe thousand squa e mete s o the daughte of the Vice Ministe , ho is unde 30 yea s old and also o ns a fo tune of mo e than VNĐ 200 billion 3Because of a lack of disclosu e and t anspa ency, society often implies and speculates that these assets come f om

Chau An, ‘The official ho o ns the “te ible” p ope ty: Whe e do the MPA ask f om? < https://baodatviet vn/ chinh-t i-xa-hoi/tin-tuc-thoi-su/con-quati'Chuc-so-huu-tai-san-khung-dbqh-hoi-tu-dau-3346053/> accessed Septembe 22, 20

nefa ious sou ces The efo e, even ithout elevant legal p ovisions, keeping p ivate

p ope ty confidential has not been easy

In this context, the State seems to have “made it mo e difficult” fo employees

in thei offices and the appa atus Acco ding to the Anti-co uption La of 20 8, the follo ing entities a e obliged to decla e assets and income:

- Officials;

- People's Public Secu ity Office ; People’sA my office s and p ofessional soldie s;

- Pe sons holding positions of Deputy Manage , o equivalent o highe , ho

o k in public non-business units, state ente p ises; pe sons appointed to ep esent the state capital po tions in ente p ises;

- National Assembly candidates, People’s Council candidates;

Befo e the p omulgation of the Anti-co uption La of 20 8, the evie

of 0 yea s of implementing the Anti-co uption La of 2005 sho ed that the decla ation of assets and incomes of civil se vants is not eally effective The decla ations a e still fo mal and have not helped the autho ities to cont ol changes

in the assets of the decla ants In 4 85 cases of decla ation ove 0 yea s

(2006-20 6), the Gove nment detected and dealt ith only 7 dishonest decla ants; in

20 7, 78 cases e e ve ified, handling 5 violato s and in the fi st 8 months of 20 8,

44 cases e e ve ified, 6 people e e found to be in violation of asset and income decla ation la openness and t anspa ency of assets and incomes of cad es and civil se vants a e impo tant tools cont ibuting to st engthening the integ ity of the state appa atus and inc easing the ability to monito and p event illegal en ichment activities Ho eve , the ineffective implementation of this activity in Vietnam can

be explained in pa t by this tool conflicting ith the ight to p ivacy of pe sonal info mation, even inf inging upon the p ivacy of the p ope ty o ne At this point,

it seems that the La on Anti-co uption has conflicted ith civil la , even the la

on human ights That is because, afte all, cad es, civil se vants o people ho

a e obliged to makedecla ations unde the La on Anti-co uption also have the status of individuals in society, and the efo e they a e fuily entitled to the ight to

be espected by othe s and be p otected by la

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1Gove nment Repo t No 46 / BC-CP ofOctobe 8,20 7 on Anti-co uption activities in 20 7 and Gove nment Repo t No 354 / BC-CP of August 30,20 8 on Anti-co uption activities in 20 8