ABSTRACT:
The Constitution of Vietnam fully recognizes all human rights. However, most constitutional rights are not absolute and they can be limited on the basis of national defense, national security, order, social security, social ethics and public health. The authors, however, argue that the rights need to be limited and conformed with acceptable international standards. This paper aims to illuminate the principle of limitation on human rights and justify those limitations as understood in Vietnam. This paper also presents expectations that Vietnamese scholars make when applying the principle of limit rights to protect the rights.
Keywords: limitation of human rights, human rights, the Constitution of Vietnam.
1. Introduction
The human society is faced with the task of protecting the fundamental right and freedom 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, for example, between the right to freedom of expression and the rights to respect for privacy. Moreover, most rights rather reflect a balance between individual and community interests. 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 Constitutions assert that rights should be in no way absolute. States can limit the exercise of these rights for valid reasons.
Different international human rights instruments follow different approaches to limitations on human rights. There are international treaties that set a general principle of limiting human rights such as the Universal Declaration of Human Rights (UDHR) (Article 29) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) (Article 4). Interestingly, ICESCR generally integrates derogation of rights into provisions on rights limitations. And, International Covenant on Civil and Political Rights (ICCPR) indicates that limitations are provided for each article guaranteeing a right without a general limitation principle. However, others may include both general limitation principles as well as internal limitations; some others may not have an express limitation principle whether internal or general. The absence of a general limitation principle may also be understood that states may limit the rights without having to justify the limitations The absence of a general limitation principle may also be understood that states may be limit the rights without having to justify the limitations. Unlike derogation of rights is only applied in times of emergency which ‘threatens the life of the nation” (Article 4.1, ICCPR), limitation of rights is applied under given conditions that states have to meet when they wish to lawfully limit rights, which have to “be determined by law” and “necessary” or “necessary in a democratic society” (Article 29, UDHR).
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 have 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 defence, national security, social order and safety, social morality and community well-being”. 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 rights (Article 7,8,11,18, ICCPR), or the Constitutions of certain countries which have specified rights that may be potentially absolute, namely the rights to human dignity, the right not to be tortured, the right to a fair trial, etc.
With the above provisions on the limitation of rights, it clearly presents 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 the 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 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.
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 has declared 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. Contents of the Principle of Limitation on Human rights under the 2013 Vietnam 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, Article 14.2 the Constitution stipulates a general principle: “Human rights and citizens’ rights may not be limited unless prescribed by solely in case of necessity for reasons of national defense, national security, social order and safety, social morality and community well-being.”. Besides, 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.
Article 14.2 of the 2013 Vietnam Constitution is considered to be the rights limitation principle. It has two important aspects to be mentioned: (i) Human rights and citizens’ rights may only be prescribed by law; (ii) the article provides the circumstances under which human rights and citizens’ rights may be limited. Indeed, many Vietnamese scholars 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.
- The 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 behaviour; (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 levels [3] – such as Decrees of the Government, Resolutions of the Justice Council of the Supreme People’s Court, the rules of a national body – apply to the legal basis to limit rights. 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 residence (Article 23), 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 demonstrate (Article 25), 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.
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); “The search of homes shall be prescribed by a law” (Article 22.3), etc. Although local experts have made the evaluation that using the expression “prescribed by law” is too narrow and unfeasible [3, p. 4] if rights are limited only by legislative documents of the National Assembly called "law." However, 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. Logically, the 2013 Constitution should have a definition of “law”. It is therefore not clear if the law includes only laws made by state legislative bodies, or it also includes regulations and directives made by the state executive bodies, or even policies of the State is also being sufficient to limit rights? There is absolutely no guideline in this regard. We also need to acknowledge that the mechanism of judgment on restricting rights is more important than what legislative documents limit these rights. What we need to care about is how limiting the rights under a law ensures proportionality, or otherwise, is constitutional [3, p. 6].
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. The limitation on rights by the law is really necessary for the practical context of Vietnam for four basic reasons: 1) for many years in Vietnam, the situation of state agencies from central to local levels having abused arbitrary limitations on human rights; 2) common practice on the promulgation of documents explaining and guiding laws and ordinances; 3) Vietnam has not granted the courts the authority to review the constitutionality and legality of legal documents; 4) citizens do not have the right to sue in court to ask the court to review legal documents under the law that violate their lawful rights and interests in accordance with the Constitution and laws. Therefore, allowing the limitation on rights by a number of “legal documents” will lead to the continued existence of abuse of the limitations of human rights.
- The 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. However, the 2013 Constitution does not provide the rights that cannot be limited (absolute right) and those subject to possible limitation (negotiable rights). This is in contrast to the Bill of Human Rights which stipulates absolute rights (Article 4 (2) ICCPR), that cannot be derogated from, even in times of emergency. It includes the right to life, the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment, the right not to be held in slavery or servitude, the right not to be imprisoned for failure to perform contractual obligations, the right not to be subject to retroactive criminal prosecutions, the right to recognition as a person before the law, and the right to freedom of thought, conscience, and religion.
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, they need to be explained and applied consistently. However, Vietnam still has not explained in detail about these types. The constitutional interpretation is the authority of the Standing Committee of the National Assembly, but has not used this right since its promulgation in the 2013 Constitution. Currently, only some of the types are explained in the law, such as the national defense and security, which are regulated by the 2014 Law on National Security[1] and the 2018 Law on Defense. Unlike in other countries, Vietnamese courts do not have the authority to interpret the Constitution and laws in a formal way. It will be very interesting to see how the Vietnam legislature will interpret this provision.
Noting that national defense and security issues are the reason for most nations to create barriers and to restrict human rights, Vietnam is no exception. Vietnam law has the concept of national defense and national security[2], the same as in many countries. Interestingly, the authority to limit human rights to protect subjects and for reasons referred to 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 the 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 ordinances, 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 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 of importance that cannot be ignored when formulating regulations on rights restriction because referring to the limitation of rights is to reach the balance and harmony of related benefits. This method has a certain flexibility so it can be adjusted in accordance with the 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 unconstitutional [3, p. 6]. 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 evaluation of the issue of "necessity" in Vietnam in the coming years.
The phrase “in case of necessity” involves a conflict of interest between the individual and the state in a democratic society. This is inevitable because protecting this person's right 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 the 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.
3. Expectations on the values of the constitutional principle of limitation on human rights
Vietnamese scholars expect that the constitutional recognition of the principle of limitation of human rights will enhance the constitutional protection of fundamental rights.
- The principle of limitation on rights is to consolidate the orientation to build the rule-of-law State in Vietnam
The text of the 1992 Constitution with many words expressing that citizens’ rights (at that time human rights were understood simultaneously as citizens’ rights) was issued by the State instead of the principle that the State should respect natural rights [2]. Constitutional recognition requires an adequate explanation for any limitation on human and citizens’ rights. This is an important element of the modern rule of the law: transparency and accountability. After all, the rule of law must uphold the supremacy of the law, so the limitation on rights must ensure the general requirement of the spirit of the rule of law which are justice, quality, fairness, and reasonability.
- The principle of limitation on rights is a powerful tool to control state power
Constitutionalism is the idea of a limited government [6]. Accordingly, human rights protection mechanism is one of three forms of state power limitation[3], and the pillar of human rights protection is the due process of law [5]. More specifically, the limitation of rights must be regulated by the law, which is aimed at limiting legislative power. Therefore, the principle of limitation on rights requires the legislative power not to promulgate laws that unreasonably limit fundamental rights (unconstitutional). For this reason, any restriction on human rights must be prescribed by a law.
Therefore, the content of the principle of limitation on rights in the 2013 Constitution is the basis for limiting the power of the legislature and limits the power of the executive power when exercising “legislative delegation” by making a regulation. The National Assembly and its Standing Committee declare legislative delegation with the requirements in the laws and ordinances.[4] Thus, if there is a legislative delegation for the executive agencies to make a regulation, the limitation of rights by the regulation must also comply with the Constitution and the requirements stipulated in the law and ordinances.
- The principle of limitation on rights is an important basis to protect human rights
In Vietnam, constitutional rights are not directly exercised and protected. Constitutional rights are only exercised and protected when they are regulated by law and regulations. Section 2 Article 14 of the 2013 Constitution is applied to normative documents under the Constitution, in order to ensure that the exercise and protection of rights will not be arbitrarily “cropped” by the law and regulations. In addition, the limitation of rights is a mechanism to ensure the achievement of legitimate of the nation, but not taking away the rights of the individual. If a limitation derogates the core or the essential content of the right[5], it becomes a constitutional infringement and not a limitation permitted under Section 2 Article 14. The 2013 Constitution provides that human rights therein enshrined belong to each individual and are not granted by the state, not only that, the rights themselves are granted by the Constitution, therefore the legislature cannot take away what does not belong to it, without the permission of the Constitution.
The principle sets out the requirements and responsibilities of state bodies in reviewing current legal documents that limit rights in accordance with Section 2 Article 14 of the 2013 Constitution so that the legislative and regulative body is responsible for amending and abolishing unreasonable limitations. This makes great sense for the protection of human rights and citizens’ rights in case of the issue of regulations on law guidance.
- The principle of limitation on rights is applicable in the state of emergency
In a time of public emergency which threatens the life of the nation, States are allowed to derogate from their accepted human rights obligations (Article 4, ICCPR). It includes the limitation of rights in a public emergency, but this limit will be stricter than ordinary rights limitations. While the ICESCR generally integrates rights, limitation into provisions on derogation from rights (Article 4). However, the limitation is fundamentally different from derogation. While rights limitation measures are typically adopted at any time and in given circumstances, derogation from rights is a type of rights limitation only in a state of emergency. Limitation to and derogation from human rights share some common features since both are the justified restriction of human rights [1], such as States should comply with the necessity and proportionality principles when they are limiting or derogating from the rights.
However, the 2013 Constitution does not have a derogation clause, however, according to the approach under Article 14.2 the Vietnam Constitution, derogation of rights is a special case of limitation on rights. Because a state of emergency is one of “in case of necessity” for reasons such as national security (in case of war) or health (in case of severe epidemics). Therefore, the general limitation principle under Article 14.2 of the 2013 Vietnam Constitution gives States the necessary latitude to respond to situations of emergency.
Conclusion. In fact, the requirement of the constitutional principle of limitation on human rights under Article 14.2 has not been fully and substantially implemented in the recently issued laws and ordinances. In particular, the reasons to limit rights had applied equally to all rights without distinction that each right has its own characteristics and limited reasons. In addition, laws recognize many exceptions or restrictions on human rights, and in most cases, these exceptions are very general, and very broadly empower agencies to intervene and limit human rights. For example, Law on Access to Information 2016 stipulates many exceptions on information provision, including exceptions for the reasons of social ethics, work secrets, internal information. Or Law on Cyber Security 2018 provides a large number of measures of control over information on cyberspace to the extent that it negatively affects the exercise of information rights. According to a research report, the principle of limitation of human rights under Article 14 (2) of the Constitution has been applied but not yet bold [2]. It shows that, although is expected to play an important role in rights protection, the principle of limitation of human rights has not made clear positive changes in ensuring and enforcing human rights. This problem results from the absence of an effective constitutional enforcement mechanism.
One of the requirements for limitation and control of power is that the limitations on rights are only imposed in necessary circumstances prescribed by the Constitution on the basis of a democratic society. However, due to the complexity of limiting human rights issues, Viet Nam needs to explain the principle of limiting 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.”. There will be a great challenge for Vietnamese public authorities in understanding and applying the proportionality method, as it has a complex legal technical essence in theories and practice. Normally, this method will be interpreted and developed by the courts. However, Vietnamese courts are not allowed to interpret the Constitution and laws. Only the Standing Committee has the authority for legal interpretation, but it has rarely exercised this function.
The problem of the human rights restriction reflects a more general constitutional problem in Vietnam: the birth of the Constitution with many positive regulations is an important constitutional development, but the implementation and enforcement of the Constitution are still very limited. Therefore, the constitutional reforms in the coming years in Vietnam certainly need to focus on the issue of Constitutional and legal enforcement.
BIBLIOGRAPHY:
[1] Law on National Defense 2018, art 2(1)
[2] 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.
[3] Three forms of limitation of state power: (i) limitation of power by organizational-technical structure; (ii) limiting power by the authority of bodies and individuals representing state power; (iii) limiting power by protecting human rights
[4] According to Article 11 of the Law on Promulgation of Legal Normative Documents 2015 “Legal Normative Documents must be specified so that when they are effective, they can be immediately implemented… they can be assigned to competent state agencies for specific regulation. Detailed documents only specify the assigned content and must not repeat the content of the detailed documents.”
[5] The concept of non-derogation from the core or the essential content of a right has its origin under Article 19 (2)“… In no case may the essence of a basic right be affected” of the Basic Law of the Federal Republic of Germany, in which the essential content of the rights is shielded from the effects of the limitation.
REFERENCES:
1. Conte A and Burchill R Defining Civil and Political Rights: The Jurisprudence of the United Nations
Human Rights Committee (2009) at 43-51
2. Nguyễn Đăng Dung (2001), Cách tiếp cận hay là cách thức quy định nhân quyền trong Hiến pháp. Tạp chí Nghiên cứu Lập pháp, số 22/2011, tr. 45-46. [Nguyen Dang Dung (2001), ‘Approach or a way of regulating human rights in the Constitution’, Journal of Legislative Studies, No.22, pp.45, 46;
3. Bùi Tiến Đạt (2015), “Hiến pháp hóa nguyên tắc giới hạn quyền con người: Cần nhưng chưa đủ”, Tạp Chí Nghiên cứu lập pháp Số 6 (286), kỳ 2 – Tháng 3/2015, tr.3-11. [Bui Tien Dat (2015), “To constitutionalize the principle of limiting the human rights: Need but not enough”, Journal of Legislative Studies, No 6 (286), pp.3-11.]
4. Bùi Tiến Đạt (2019), Kinh nghiệm nước ngoài về tiếp cận dựa trên quyền con người, quyền công dân trong hoạt động xây dựng pháp luật và hàm ý cho Việt Nam, Báo cáo nghiên cứu Đề tài Một số vấn đề lý luận và thực tiễn về tiếp cận dựa trên quyền con người, quyền công dân trong hoạt động xây dựng pháp luật tại Việt Nam hiện nay, Viện nghiên cứu lập pháp, Hà Nội. [Bui Tien Dat (2019), “Foreign experience on human rights-based approach in law-making activities and implications for Vietnam” (2019), in the Research Project Report “Some Theoretical and Practical Issues on Human Rights-based Approach in Law-making Activities in Vietnam today”, Institue for Legislative Study under the Standing Committee of National Assembly].
5. Bùi Tiến Đạt (2015), “Học thuyết trình tự công bằng và việc bảo vệ quyền con người: Kinh nghiệm quốc tế và Việt Nam”, Tạp chí Nghiên cứu lập pháp, số 11(291), tr.61-71. [Bui Tien Dat, (2015), “The doctrine of due process and the protection of human rights: International experience and Vietnam”, Journal of Legislative Studies, No.11(291), pp.61-71. ]
6. Russell Hardin, 'Constitutionalism' in Barry R. Weingast and Donald Wittman (eds). (2008). OHPE (Oxford University Press) 289.
Giới hạn quyền con người: Nguyên tắc hiến pháp và những kỳ vọng áp dụng trong việc bảo vệ quyền tại Việt Nam
Lê Quỳnh Mai - Bùi Trung Hiếu
TÓM TẮT:
Hiến pháp Việt Nam đã khẳng định quyền con người được công nhận, tôn trọng, bảo vệ, bảo đảm. Tuy nhiên, các quyền hiến định không tuyệt đối, các quyền này có thể bị giới hạn bởi luật vì lý do quốc phòng, an ninh quốc gia, trật tự, an toàn xã hội, đạo đức xã hội, sức khỏe của cộng đồng. Tác giả cho rằng giới hạn quyền là cần thiết và phải tuân theo các tiêu chuẩn nhân quyền quốc tế. Bài viết này nhằm làm rõ hơn nội dung nguyên tắc giới hạn quyền con người và những biện minh cho cách hiểu nguyên tắc này tại Việt Nam. Ngoài ra, bài viết phân tích những kỳ vọng mà các học giả Việt Nam đề cập khi áp dụng nguyên tắc giới hạn quyền để bảo vệ quyền.
Từ khóa: giới hạn quyền, quyền con người, Hiến pháp Việt Nam.
[Tạp chí Công Thương - Các kết quả nghiên cứu khoa học và ứng dụng công nghệ, Số 11, tháng 5 năm 2021]