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Constitutional Debate and Development on Human Rights in Vietnam

  • Giao Cong VU (a1) and Kien TRAN (a2)

Abstract

This article analyzes the constitutional debate on and development of human rights in Vietnam throughout five constitutions from 1946 to 2013, as well as the prospects and challenges in promoting human rights in Vietnam during and after the development of its 2013 Constitution. It begins with an investigation and discussion of the human rights provisions from the 1946 Constitution to the 1992 Constitution – a period where the socialist human rights tradition was established in Vietnam. It follows with an analysis of the debates on the new human rights and citizens’ rights provisions in the 1992 Constitution, where a new concept of natural human rights emerged. The article continues to explore how the struggle and debates surrounding the competing conception of rights – socialist and positivist on one hand and natural law-based on the other – come into play in shaping the 2013 Constitution. It then proceeds to evaluate the potential challenges involved in the implementation of these rights in the coming years. The authors argue that the development of constitutional human rights in Vietnam is still limited by ideological barriers. It also faces substantial practical challenges owing to, inter alia, the absence of provisions for the immediate implementation of such rights as well as legal mechanisms for the protection of constitutional rights, such as a constitutional review system.

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Copyright

© National University of Singapore, 2017 

Footnotes

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*

LLB (Hanoi Law University, Hanoi), LLM (Raoul Wallenberg, Lund University), PhD (Mahidol University); Associate Professor, Lecturer, Head of Constitutional and Administrative Law Department, School of Law, Vietnam National University, Hanoi.

**

LLB (Hons) (School of Law, Vietnam National University, Hanoi), LLM (School of Law, University of Glasgow), PhD (School of Law, University of Glasgow); Lecturer, School of Law, Vietnam National University, Hanoi.

Footnotes

References

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1. 1946 Constitution of the Democratic Republic of Vietnam (adopted 9 November 1946) [1946 Constitution].

2. 1992 Constitution of the Democratic Republic of Vietnam (adopted 25 April 1992, amended 25 December 2001) [1992 Constitution].

3. 2013 Constitution of the Socialist Republic of Vietnam (adopted 28 November 2013) [2013 Constitution].

4. See e.g. BUI, Thiem H, “Deconstructing the ‘Socialist’ Rule of Law in Vietnam: The Changing Discourse on Human Rights in Vietnam’s Constitutional Reform Process” (2014) 36(1) Contemporary Southeast Asia: A Journal of International and Strategic Affairs 77 [BUI, “Deconstructing”]; BUI, Ngoc Son, “Beyond Judicial Review: the Proposal of the Constitutional Academy” (2014) The Chinese Journal of Comparative Law 43 ; NGUYEN, Thi Huong, “Pursuing Constitutional Dialogue within Socialist Vietnam: The 2010 Debate” (2012) 13(1) Australian Journal of Asian Law 1 ; BUI, Ngoc Son, “Confucian Constitutionalism: Classical Foundations” (2012) 37 Australian Journal of Legal Philosophy 61 ; BUI, Ngoc Son, “The Introduction of Modern Constitutionalism in East Asian Confucian Context: The Case of Vietnam in the Early Twentieth Century” (2012) 7(2) National Taiwan University Law Review 423 ; BUI, Ngoc Son, “Confucian Constitutionalism in Imperial Vietnam” (2013) 8(2) National Taiwan University Law Review 373 .

5. See e.g. GILLESPIE, John, “Human Rights as a Larger Loyalty: The Evolution of Religious Freedom in Vietnam” (2014) 47(1) Harvard Human Rights Journal 107 ; GILLESPIE, John, “Evolving Concepts of Human Rights in Vietnam”, in Randall PEERENBOOM, Carole J PETERSEN & Albert H Y CHEN, eds, Human Rights in Asia: A comparative legal study of twelve Asian jurisdictions, France and the USA (Abingdon, Oxon and New York: Routledge, 2006) 452 ; GILLESPIE, John and CHEN, Albert H Y, Legal Reforms in China and Vietnam: A comparison of Asian Communist Regimes (Abingdon, Oxon and New York: Routledge, 2010); CHEN, Albert H Y, Constitutionalism in Asia in the Early Twenty-First Century (Cambridge: Cambridge University Press, 2014); Penelope NICHOLSON, “Vietnamese Jurisprudence: Informing Court Reform?” (Paper delivered at the Law and Governance: Socialist Transforming Vietnam Conference, University of Melbourne, 12-13 June 2003) [unpublished].

6. 1946 Constitution, supra note 1.

7. 1959 Constitution of the Democratic Republic of Vietnam (adopted 31 December 1959) [1959 Constitution].

8. 1980 Constitution of the Socialist Republic of Vietnam (adopted 19 December 1980) [1980 Constitution].

9. BUI, Xuan Duc, “Chapter on Fundamental Rights and Duties of Citizens in the 1992 Constitution: Shortcomings, Limitations, and Solutions” in NGUYEN Dang Dung et al, eds, Constitution: Theories and Practices (Hanoi: Vietnam National University, Hanoi Press 2011) 615 at 617 [Bui, “Shortcomings, Limitations, and Solutions”].

10. TRAN, Kien, “Building Strong and Wisdom State of the People: Looking back at the 1946 Constitution in order to amend the 1992 Constitution”, in NGUYEN Dang Dung et al, eds, Amending the 1992 Constitution: Theoretical and Practical Issues (Hanoi: Hong Duc Publisher, 2012) vol 2, 449 .

11. Stein TONESSION, “Ho Chi Minh’s First Constitution (1946)” (Paper delivered at the International Conference on Vietnamese Studies and the Enhancement of International Cooperation, Hanoi, July 1998) [unpublished] at 5; PHAM Khắc Hòe, “Sự Ra Đời Của Nhà Nước Dân Chủ Nhân Dân Việt Nam [The Birth of the Democratic Republic of Vietnam]” in VU Dinh Hoe et al, Some Issues Regarding the State and Laws of Vietnam (Hanoi: Social Sciences Publishing House, 1972) 5 at 20 – 39; BUI Ngọc Sơn, “Lại Bàn Về Bài Học Từ Hiến Pháp 1946 [Revisiting Lessons Learnt from the 1946 Constitution]” Tạp chí Tia sáng [Tiasang Magazine] (21 September 2011), online: Tap Chi Tia Sang <http://www.tiasang.com.vn/>.

12. Tonession, supra note 11.

13. NGUYEN Đăng Dung, “Chính Thể Nhà Nước Việt Nam trong Hiến Pháp 1946, Sự Sáng Tạo Tài Tình của Chủ Tịch Hồ Chí Minh [The Institution of the State in the 1946 Constitution, An Innovation of President Ho Chi Minh]” in The National Assembly’s Office, The 1946 Constitution and Its Succession, Development in Subsequent Constitutions of Vietnam (Hanoi: National Political Publishing House, 1998) at 170; Tran, supra note 10.

14. THAI, Vĩnh Thắng, “Tư Tưởng Lập Hiến ở Việt Nam Trước Cách Mạng Tháng Tám Năm 1945 [Constitutional Building Thoughts in Vietnam before the August Revolution of 1945]” (2011) Tạp Chí Nhà Nước và Pháp Luật [The Journal of State and Law] 27 ; BUI, Ngoc Son, “The Introduction of Modern Constitutionalism in East Asian Confucian Context: The Case of Vietnam in the Early Twentieth Century” (2012) 7(2) National Taiwan Law Review at 423 .

15. FINNIS, John, “Natural Law Theories”, The Stanford Encyclopedia of Philosophy (4 November 2015), online: Stanford Encyclopedia of Philosophy <http://plato.stanford.edu/archives/win2015/entries/natural-law-theories/>.

16. DO, Xuan Sang et al, eds, An Outline of the Institutions of the Democratic Republic of Vietnam (Hanoi: Foreign Languages Publishing House, 1974) at 9 .

17. 1946 Constitution, supra note 1, art 12.

18. 1980 Constitution, supra note 8, Preamble and arts 2, 4, 17.

19. SIDEL, Mark, “Analytical Models for Understanding Constitutions and Constitutional Dialogue in Socialist Transitional States: Re-interpreting Constitutional Dialogue in Vietnam” (2002) 6 Singapore Journal of International and Comparative Law 42 .

20. Ibid at 42; 1992 Constitution, supra note 2.

21. MARX, Karl and ENGELS, Frederick, “Manifesto of the Communist Party” in Marx/Engels: Selected Works, (Moscow: Progress Publishers, 1969) vol 1 at 98–137 .

22. Ibid.

23. NICHOLSON, Penelope, “Vietnamese Legal Institutions in Comparative Perspective: Contemporary Constitutions and Courts Considered” in Kanishka JAYASURIYA, ed, Law, Capitalism and Power in Asia: The rule of law and legal institutions (London and New York: Routledge, 1999) 257 at 267 .

24. Ibid at 268 – 269.

25. Dam Van Hieu, Các Quyền Và Tự Do Cơ Bản Của Con Người [Fundamental Rights and Duties of Citizens] (Hanoi: Legal Publishing House, 1981) at 5.

26. Ibid at 7-8.

27. GILLESPIE, John, “Changing Concepts of Socialist Law in Vietnam” in John GILLESPIE & Penelope NICHOLSON, eds, Asian Socialism and Legal Change: The Dynamics of Vietnamese and Chinese Reform (Australia: Australian National University Press, 2005) 45 at 45 – 47.

28. Bui, “Deconstructing”, supra note 4 at 77.

29. Article 50 of the 1992 Constitution, supra note 2, states: “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”.

30. See BUI, Ngoc Son, BUI, Tien Dat & NGUYEN, Dang Dung, Findings Report of the Research on “Human Rights in the Constitutions of Vietnam” (Hanoi: Vietnam National University Hanoi, 2010) at 149 [Bui, et al, Findings Report]. See also VU, Cong Giao, Findings Report of the Research on “Human Rights in Constitutions of Vietnam and Constitutions of Selected Countries”, (Hanoi: Vietnam National University, 2012) at 98 [Vu, Findings Report]; HOANG Xuan Phu, “Decreasing Human Rights in Constitution” Cùng Viết Hiến Pháp [Writing the Constitution Together] (1 February 2013), online: Cùng Viết Hiến Pháp <https://cungviethienphap.wordpress.com/2013/02/01/teo-dan-quyen-con-nguoi-trong-hien-phap/>.

31. Drafting Committee, Báo Cáo Tổng Kết Thi Hành Hiến Pháp Năm 1992 [Report on Review of the Implementation of the 1992 Constitution] (1 October 2012), submitted to the Government (with limited access) at 12, item 2.5.

32. Vu, Findings Report, supra note 30 at 98.

33. Ibid at 99; Drafting Committee, Report on Review of Review of the Implementation of the 1992 Constitution, supra note 31.

34. Vu, Findings Report, supra note 30 at 8; NGUYEN Van Dong, “Situation, viewpoints and directions for revision and supplement of provisions on human and citizens’ rights in the 1992 Constitution” in NGUYEN Dang Dung et al, eds, Constitution: Theories and Practices (Hanoi, Vietnam National University, Hanoi Press 2011), 639.

35. Resolution No 59/2001/QH10 on Amending, and Supplementing Some Provisions of the 1992 Constitution, adopted by the National Assembly, dated 25 December 2001.

36. Under international human rights law, only the right to vote and the right to take part in the government of his country are expressly limited to citizens, while the vast majority of human rights are available to both public citizens and foreigners legally living in the territory of a country. See Office of the United Nations High Commissioner for Human Rights, “The Rights of Non-citizens” United Nations Human Rights, Office of the High Commissioner (2006), online: United Nations Human Rights, Office of the High Commissioner <http://www.ohchr.org/Documents/Publications/noncitizensen.pdf>; COLE, David, “Are Foreign Nationals Entitled to the Same Constitutional Rights As Citizens?” (2003) 25 Thomas Jefferson Law Review 367 .

37. Drafting Committee, Report on Review of Review of the Implementation of the 1992 Constitution, supra note 31 at 13, item 2.5; Vu, Findings Report, supra note 30 at 120; Bui et al, Findings Report, supra note 30 at 150.

38. International human rights law lays down obligations to which states are bound, including an obligation to respect, protect, and fulfil human rights. See “International Human Rights Law” United Nations Human Rights, Office of the High Commissioner, online: United Nations Human Rights, Office of the High Commissioner <http://www.ohchr.org/EN/ProfessionalInterest/Pages/InternationalLaw.aspx>.

39. Drafting Committee, Report on Review of Review of the Implementation of the 1992 Constitution, supra note 31 at 14, item 2.5.

40. Ibid at 15, item 2.5; Vu, Findings Report, supra note 30 at 119; Bui et al, Findings Report, supra note 30 at 149.

41. NGUYEN Nhu Phat, “Một số định hướng và phương pháp ghi nhận quyền cơ bản của công dân, quyền con người trong Hiến pháp sửa đổi [Some orientations and methods of recording fundamental citizen’s rights and human rights in the amending Constitution]”, Viện Nhà Nước và Pháp Luật [Institute of State and Law] (21 May 2012), online: Viện Nhà Nước và Pháp Luật <http://isl.vass.gov.vn/noidung/tintuc/Lists/GopYDuThaoSuaDoiHienPhap/View_Detail.aspx?ItemID=5>.

42. 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).

43. According to Article 4 of the International Covenant on Civil and Political Rights (ICCPR), in times of public emergency, State Parties may take measures derogating from their obligations under the Covenant, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion, or social origin. However, no derogation from Articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.

44. See e.g. 1982 Constitution of the Republic of China (adopted 4 December 1982) (amended 14 March 2004), art 51 and 1993 Constitution of the Russian Federation (adopted 12 December 1993), arts 17 and 57. See also BÖCKENFÖRDE, Markus, Nora HEDLING & Winluck WAHIU, “A Practical Guide to Constitution Building” International Institute for Democracy and Electoral Assistance (2011), online: Constitutionnet.org <http://www.constitutionnet.org/files/cb-handbook-all-chapters-050112.pdf> at Chapter 3.

45. Vu, Findings Report, supra note 30 at 123. See also Tung, La Khanh, “Individual Rights in Vietnamese Constitutions: Reflection from International Bill of Human Rights”, in NGUYEN Dang Dung et al, eds, Constitution: Theories and Practices (Hanoi, Vietnam National University, Hanoi Press 2011) 669 [La, “Individual Rights in Vietnamese Constitutions”].

46. Office of the United Nations High Commissioner for Human Rights and UN Habitat, The Right to Adequate Housing, Fact Sheet No 21/Rev 1, 2014, online: United Nations Human Rights, Office of the High Commissioner <http://www.ohchr.org/Documents/Publications/FS21_rev_1_Housing_en.pdf>.

47. MENDEL, Toby, “Freedom of Information as an Internationally Protected Human Right” Article 19, online: Article 19 <https://www.article19.org/data/files/pdfs/publications/foi-as-an-international-right.pdf>.

48. Vu, Findings Report, supra note 30 at 131.

49. Bui et al, Findings Report, supra note 30 at 153.

50. Ibid at 154.

51. Universal Declaration of Human Rights (1948); BROWN, Gordon, ed, The Universal Declaration of Human Rights in the 21st Century: A Living Document in a Changing World (Cambridge, UK: Open Book Publishers, 2016) at 29 – 39 .

52. “The Declaration of Independence and Natural Rights” Constitutional Rights Foundation (2001), online: Constitutional Rights Foundation <http://www.crf-usa.org/foundations-of-our-constitution/natural-rights.html>; Richard TUCK, Natural Rights Theories (Cambridge: Cambridge University Press, 1979). Vietnam’s 1946 Constitution, supra note 1, stipulated that human rights were natural and default values of individuals. This is expressly stated in Chapter II: “All Vietnamese citizen are equal in rights…” (Article 6); “All Vietnamese citizen are equal under the laws… (Article 7); “Women are equal to men in every term” (Article 9); “Vietnamese citizen have the freedom of speech, paper and publishing…” (Article 10) or “Until justice makes a decision, there is no legal arrestment and custody of Vietnamese citizens” (Article 11).

53. In the “Manifesto of the Communist Party”, supra note 21, Karl Marx said that “the law is the will of the class which keeps domination of society”.

54. According to Lenin, the State is the institution set up to enable a class to remain dominant over others, and a mechanism for a class to suppress other classes. See V I LENIN, Collected Works (Moscow: Progress Publisher, 1981) vol 32 at 303 and vol 37 at 122, online: Marxists Internet Archive <https://www.marxists.org/archive/lenin/works/cw/index.htm>.

55. See Bui et al, Findings Report, supra note 30 at 149; NGUYEN Dang Dung & BUI Tien Dat, “Cai Cach Che Dinh Quyen va Nghia Vu Co Ban Cua Cong Dan Trong Hien Phap 1992 Theo Cac Nguyen Tac Ton Trong Quyen Con Nguoi [Reforming Provisions on Rights and Duties of Citizens in the 1992 Constitution According Principles of Human Rights Protection]” in NGUYEN Dang Dung et al, eds, Amending the 1992 Constitution: Theoretical and Practical Issues (Hanoi: Hong Duc Publisher, 2012) vol 2, 14 at 24.

56. See Bui et al, Findings Report, supra note 30, at 149; Nguyen and Bui, supra note 55.

57. Communist Party of Vietnam, Văn kiện Đại hội Đại biểu toàn quốc lần thứ XI [Documents for the XI National Congress of the Communist Party of Vietnam] (Hanoi: Nhà Xuất Bản Chính Trị Quốc Gia [The National Political Publishing House], 2011) 247.

58. See Report No 11/TTr-UBTVQH13 on the Implementation of the Policy on Research on Amending and Supplementing the 1992 Constitution by the Standing Committee of the National Assembly, dated 8 February 2011 at items 2.5 and 3; See also Report on the Basic Content for Amendment of the 1992 Constitution by the Drafting Committee, dated 27 February 2012 at s 4; and Report on the Draft Amendment to the 1992 Constitution by the Drafting Committee, dated 1 October 2012.

59. TRUONG, Trong Nghia, “The Rule of Law in Vietnam: Theory and Practice” in The Mansfield Center for Pacific Affairs, The Rule of Law: Perspectives from the Pacific Rim (United States: Mansfield Center for Pacific Affairs, 2000) 123 at 123 – 141 .

60. Bui, “Deconstructing”, supra note 4 at 87.

61. LE Son, “Hơn 15 triệu lượt góp ý kiến cho Dự thảo sửa đổi Hiến pháp 1992 [More than 15 Million Public Consultations to Drafted Constitution Amending the 1992 Constitution]” Bao Dien Tu Chinh Phu [Online Newspaper of the Government] (25 March 2013), online: Bao Dien Tu Chinh Phu <http://baochinhphu.vn/Tieu-diem/Hon-15-trieu-luot-gop-y-kien-cho-Du-thao-sua-doi-Hien-phap-1992/164889.vgp>; Vietnam News Agency, “Đã có 20 triệu lượt ý kiến góp ý Hiến pháp [There Have Been 20 Million Public Consultations to the Drafted Constitution]” Tuoi Tre [Youth Newspaper] (29 March 2013), online: Tuoi Tre <http://tuoitre.vn/tin/chinh-tri-xa-hoi/20130329/da-co-20-trieu-luot-y-kien-gop-y-hien-phap/540153.html>.

62. Bui, “Deconstructing,” supra note 4 at 93 – 94.

63. Ibid at 94.

64. Ibid at 92 – 93.

65. “Tổng bí thư: ‘Đề phòng thế lực muốn xoá bỏ điều 4 Hiến pháp [General Secretary: Take caution of hostile forces’ attempt to remove Article 4 of the Constitution]”, VnExpress (28 September 2013), online: VnExpress <http://vnexpress.net/tin-tuc/thoi-su/tong-bi-thu-de-phong-the-luc-muon-xoa-bo-dieu-4-hien-phap-2886937.html>.

66. PHAM, Binh Minh, “Việt Nam Đối Thoại Với Các Quốc Gia Khác Về Dân Chủ Và Nhân Quyền [Vietnam’s Dialogues with Other Countries on Democracy and Human Rights]” (2010) 7 Tap chi ly luan chinh tri [Journal of Political Theory] 18 .

67. Bui, “Shortcomings, Limitations, and Solutions”, supra note 9 at 615.

68. NGUYEN, Dang Dung, “Một Cách Tiếp Cận Hay Là Cách Thức Quy Định Nhân Quyền Trong Hiến Pháp [An Approach to or a Way of Stipulating Human Rights in the Constitution]”, Tap chi Nghien cuu lap phap [Journal of Legislative Studies] (2011), online: Tap Chi Nghien Cuu Lap Phap <http://www.nclp.org.vn/nha_nuoc_va_phap_luat/cach-tiep-can-hay-la-cach-thuc-quy-111inh-nhan-quyen-trong-hien-phap>.

69. La, “Individual Rights in Vietnamese Constitutions”, supra note 45.

70. Report on the Collection of People’s Opinions on the Amendment Draft to the 1992 Constitution (from 30/04/2013 to 01/02/2013) by the Drafting Committee, dated 5 September 2013 at Parts I and III [Report on the Collection of People’s Opinions].

71. Examples of proposed titles include “Human Rights, Citizens’ Rights” and “The Rights and Freedoms of Peoples and Citizens”. See NGUYEN, Dang Dung and VU, Cong Giao, “Chapter on Human Rights and Citizens’ Rights in the Constitutions in the World and the Implication for Vietnam” in NGUYEN Dang Dung et al, eds, Constitution: Theories and Practices (Hanoi, Vietnam National University, Hanoi Press 2011) 1103 at 1120 [Nguyen and Vu, “Chapter on Human Rights”].

72. Examples of such proposals include shifting the Chapter on human rights to before the Chapter on Political Regime, or to separate the Chapter into two: one on Human Rights and another on Citizens’ Rights. See Report on the Collection of People’s Opinions, supra note 70 at Part III.

73. According to the Drafting Committee, there were 4,911,6187,383,962 opinions in favour of the title of that Chapter. Only fifteen opinions objected, and one suggested that the title should remain unchanged. The other titles suggested include: “Human Rights, Basic Rights and Duties of Citizens”; “Human Rights and Duties”; “Basic Human Rights, Basic Citizens’ Rights and Duties”; “Human and Citizens’ Rights and Duties”; “Human Rights”. See Report on the Collection of People’s Opinions, supra note 70 at Part III.

74. UONG Chu Luu, “Những nội dung cơ bản của Hiến pháp Nước Cộng hòa xã hội chủ nghĩa Việt Nam [Main Contents of the Socialist Republic of Vietnam’s Constitution]” (Paper delivered at the National Conference on Implementation of the New Constitution, 8 January 2014) Quang Tri [Quangtri Department of Natural Resources and Environment], online: Quang Tri <http://stnmt.quangtri.gov.vn/index.php?option=com_content&view=article&id=622:nhng-ni-dung-c-bn-ca-hin-phap-nc-cng-hoa-xa-hi-ch-ngha-vit-nam&catid=186:t-chc&Itemid=179>.

75. VU, Cong Giao and NGUYEN, Son Dong, “Những Điểm Mới Tiến Bộ về Quyền Con Người, Quyền Công Dân trong Hiến Pháp 2013 và Việc Thực Thi [The progressive new points in human and citizens’ rights in the 2013 Constitution and its implementation]” (2014) 30 Tạp Chí Khoa Học ĐHQGHN: Luật Học [Scientific Journal of the National University: Jurisprudence] 41 ; NGUYEN, Nhu Phat, “Human Rights under the 2013 Constitution” in PHAM Van Hung et al, eds, Constitution of the Socialist Republic of Vietnam - Political and Legal Background for the comprehensive Reform of the Country in the New Period (Hanoi: Labour and Social Publishing House, 2014) 59-68.

76. For example, concerning the freedom of movement and residence, Article 12(1) of ICCPR stipulates that “Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.” Thus, the stipulation that only citizens are entitled to that right is obviously not in accordance with Article 12, ICCPR. Similarly, when stipulating freedom of expression, assembly, association, demonstration, the rights of ethnic minorities to preserve their own culture (Articles 19, 21, 22, 27 ICCPR), the right to an adequate standard of living (including housing); the right to education (Article 11, 13 of ICESCR), the Covenants use the pronoun “everyone” to indicate that these rights are not only applicable to citizens in a country.

77. In addition to suggestions from local experts, many other individuals directly and indirectly proposed to concretize the obligations of the State in the field of human and citizens’ rights in the 2013 Constitution. See Report on the Collection of People’s Opinions, supra note 70 at Part III.

78. For example, the phrase “the State shall ensure the right policy ...”, “The State shall create conditions ...” for citizens to exercise their rights in Articles 26 and 28. Or “human rights of children/youth/old persons are protected/facilitated by the state in Article 37. See NGUYEN Ngoc Lanh, “Khẩu khí “ông chủ” trong Hiến Pháp [Mentality of ‘Boss’ in the Constitution]” Cùng Viết Hiến Pháp [Writing the Constitution Together] (11 February 2013), online: Cùng Viết Hiến Pháp <https://cungviethienphap.wordpress.com/2013/02/11/khau-khi-ong-chu-trong-hien-phap-nguyen-ngoc-lanh/>.

79. Report on the Collection of People’s Opinions, supra note 70 at Part III.

80. UDHR, art 29; ICESCR, art 4; and ICCPR.

81. VU, Cong Giao, “Institutionalization of Human and Citizens’ Rights in the 2013 Constitution” in DAO Tri Uc et al, eds, Constitution of the Socialist Republic of Vietnam in 2013: Scientific Commentaries (Hanoi: Labour and Society Publisher, 2014) 176 .

82. According to OHCHR, absolute/non-derogable rights in ICCPR include: the right to life (Article 6); prohibition of torture, cruel, inhuman and degrading treatment (Article 7); prohibition of medical or scientific experimentation without consent (Article 7); prohibition of slavery, slave trade and servitude (Article 8); prohibition of imprisonment because of inability to fulfil contractual obligation (Article 11); principle of legality in criminal law i.e. the requirement that criminal liability and punishment is limited to clear and precise provisions in the law, that was in force at the time the act or omission took place, except in cases where a later law imposes a lighter penalty (Article 15); recognition everywhere as a person before the law (Article16); freedom of thought, conscience and religion (Article 18). See Office of the United Nations High Commissioner for Human Rights, “Core Human Rights in the Two Covenants” (September 2013), online: Office of the United Nations High Commissioner for Human Rights <http://nhri.ohchr.org/EN/IHRS/TreatyBodies/Page%20Documents/Core%20Human%20Rights.pdf>.

83. On absolute/non-derogable rights, see CCPR General Comment No 29: Article 4: Derogations during a State of Emergency, adopted at the Seventy-second Session of the Human Rights Committee (31 August 2001), online: Refworld <http://www.refworld.org/docid/453883fd1f.html>.

84. Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, Annex, UN Doc E/CN.4/1984/4 (1984), at B (vi).

85. Ibid.

86. See the commentary and recommendations by Article 19 which contends that this rule is against international human rights law at “Vietnam: Proposed Constitutional Amendments Go Against International Law” Article 19 (25 March 2013), online: Article 19 <http://www.article19.org/resources.php/resource/3680/en/vietnam:-proposed-constitutional-amendments-go-against-international-law>.

87. Uong, supra note 74 at item 3.

88. See e.g. NGUYEN, Linh Giang, “Revising and Supplementing Civil Rights in the 1992 Constitution” in PHAM Huu Nghi et al, eds, Revising and Supplementing Chapter of Human Rights, Basic Rights and Duties of Citizen in the 1992 Constitution (Hanoi: Social Sciences Publisher, 2012) 67 at 67-87; LA, Khanh Tung, “Individual Rights in Vietnamese Constitutions: Reflection from International Bill of Human Rights” in NGUYEN Dang Dung et al, eds, Amending the 1992 Constitution: Theoretical and Practical Issues (Hanoi, Hong Duc Publisher, 2012) vol 2, 92; TUONG, Duy Kien, “Experiences from some other countries and lessons for Vietnam” in PHAM Huu Nghi et al, eds, Revising and Supplementing Chapter of Human Rights, Basic Rights and Duties of Citizen in the 1992 Constitution (Hanoi: Social Sciences Publisher, 2012), 140 .

89. Report on the Collection of People’s Opinions, supra note 70 at Part III.

90. Mendel, supra note 47.

91. NGUYEN, Van Phuc, “Provisions on economic, social, cultural, educational, scientific, technology and environmental issues in the 2013 Constitutions” in DAO Tri Uc et al, eds, Constitution of the Socialist Republic of Vietnam in 2013: Scientific Commentaries (Hanoi: Labour and Society Publisher, 2014), 229 .

92. Ibid at 237.

93. NGUYEN, Nhu Phat, ed, Tai Phan Hien Phap Mot So Van De Ly Luan Co Ban, Kinh Nghiem Quoc Te va Kha Nang Ap Dung Cho Viet Nam [Judicial Review: Some Theoretical Issues, Foreign Experience and the Possibility of Application in Vietnam] (Hanoi: Social Sciences Publishing House, 2011); The Drafting Committee, Mo Hinh To Chuc va Hoat Dong Cua Mot So Hoi Dong Hien Phap o Mot So Nuoc Tren The Gioi [Models and Operation of Some Constitutional Councils in the World] (Hanoi: National Political Publishing House, 2013).

94. Ibid.

95. 2013 Constitution, supra note 3, Art 119.

96. THẾ Dũng, “Khong Thanh Lap Hoi Dong Hien Phap [No Constitutional Council Established]”, Nguoi Lao Dong [Labourer] (22 October 2013), online: Nguoi Lao Dong <http://nld.com.vn/thoi-su-trong-nuoc/khong-thanh-lap-hoi-dong-hien-phap-20131022112618832.htm>.

97. Ibid.

98. D.C.N, “Lua Chon Mo Hinh Bao Hien Phu Hop Voi The Che Chinh Tri [Choosing a Model of Constitutional Review in line with the Political System]”, An Ninh Thu Do [Capital Police] (07 September 2013), online: An Ninh Thu Do <http://anninhthudo.vn/chinh-tri-xa-hoi/lua-chon-mo-hinh-bao-hien-phu-hop-voi-the-che-chinh-tri/514699.antd>.

99. Resolution No 20/2011/QH13 of the National Assembly on the Legislative Agenda of the XIII National Assembly, dated 26 November 2011. At the time of writing this article, a number of laws have been promulgated including new Criminal and Criminal Procedure Codes, a new Civil Code, and a new Law on Access of Information.

100. Vietnam has been a member of the UN Human Rights Council since 2013. Its term will end by 2016. See Office of the High Commissioner, United Nations Human Rights, “Current Membership of the HRC”, online: Office of the High Commissioner, United Nations Human Rights <http://www.ohchr.org/EN/HRBodies/HRC/Pages/CurrentMembers.aspx>.

101. Vietnam has been a member of the ASEAN Inter-governmental Committee on Human Rights (AICHR) since 2009. See ASEAN Intergovernmental Committee on Human Rights, “About”, online: AICHR <http://aichr.org/about/>.

102. Vietnam completed its UPR in 2009 and 2014. See Office of the High Commissioner, United Nations Human Rights, “Universal Periodic Review – Viet Nam” (8 May 2009), online: Office of the High Commissioner, United Nations Human Rights <http://www.ohchr.org/EN/HRBodies/UPR/PAGES/VNSession5.aspx>; Office of the High Commissioner, United Nations Human Rights, “Universal Periodic Review Second Cycle – Viet Nam” (5 February 2014), online: Office of the High Commissioner, United Nations Human Rights <http://www.ohchr.org/EN/HRBodies/UPR/Pages/VNSession18.aspx>.

103. United Nations, “Viet Nam’s candidacy to the United Nations Human Rights Council for the term 2014-2016: voluntary pledges under resolution 60/251”, online: United Nations <http://www.un.org/en/ga/search/view_doc.asp?symbol=A/68/312>.

104. In practice, a group for UPR was set up by many local activists who are active in campaigning for the implementation of recommendations from other countries to the Vietnamese government during the UPR process. “Vietnam UPR”, online: Vietnam UPR <http://vietnamupr.com/>.

105. For details on human rights education in Vietnam, see Office of the High Commissioner, United Nations Human Rights, “Universal Periodic Review Second Cycle – Viet Nam” (5 February 2014), online: Office of the High Commissioner, United Nations Human Rights <http://www.ohchr.org/EN/HRBodies/UPR/Pages/VNSession18.aspx>; NGUYEN Huu Chi, “Human Rights Education in Law Schools of Vietnam” (2015) Journal of Legislative Studies 54.

106. These Masters programs in human rights are run by the School of Law under Vietnam National University Hanoi, the Graduate Academy of Social Sciences under Vietnam National Academy of Social Sciences, and the Research Institute of Human Rights under Ho Chi Minh National Political Academy.

107. For details about civil society in Vietnam, see Asian Development Bank, “Civil Society Briefs: Viet Nam”, online: Asian Development Bank <http://www.adb.org/publications/civil-society-briefs-viet-nam>; Irene NØRLUND, “Civil Society in Vietnam: Social Organisations and Approaches to New Concepts” (2007) 105 ASIEN 68; NGUYEN Thi Bich Diep, “Overall on Legal Framework for Civil Society Organizations [in Vietnam]”, online: NGO Centre <www.ngocentre.org.vn/files/docs/2_ppt_paper_cso_law_vie_final.ppt+&cd=39&hl=en&ct=clnk>.

108. Irene NØRLUND et al, eds, “The Emerging Civil Society: An Initial Assessment of Civil Society in Vietnam” (March 2006), online: Vietnam Institute of Development Studies < http://www.vids.org.vn/vn/Attach/20065222515_CSI_VN_Final_report.pdf>; Irene NØRLUND, “Filling the Gap: The Emerging Civil Society in Vietnam” (2007), online: United Nations <http://www.un.org.vn/vi/publications/doc_details/3-kha-lp-s-cach-bit-xa-hi-dan-s-mi-ni-ti-vit-nam.html>.

109. There are many local NGOs networks set up in the form of working groups, such as the Administrators Working Group, the Corporate Engagement Working Group, the Agent Orange Working Group, the Capacity Development Working Group, the Child Rights Working Group, the Climate Change Working Group, the Disability Working Group, the Ethnic Minorities Working Group, the Microfinance Working Group, the Sustainable Agriculture and Natural Resources Management Working Group, and the Water Supply, Sanitation and Hygiene Working Group. See “VUFO-NGO Resource Center”, online: NGO Centre <http://www.ngocentre.org.vn/workinggroups>.

110. For example, in its Resolution No 89/2015/QH13 on Adjustment of the Program on Building Laws and Ordinances in 2015 and on the Program on Building Laws and Ordinances in 2016 adopted by the National Assembly of Vietnam, dated 9 June 2015, the National Assembly decided to delay the time for development of the Law on Demonstration from the Ninth Session until the Eleventh Session.

111. Nguyen and Vu, “Chapter on Human Rights”, supra note 71.

112. NICHOLSON, Penelope, “Renovating Courts: The Role of Courts in Contemporary Vietnam” in Jiunn-Rong YEH & Wen-Cheng CHANG, eds, Asian Courts in Context (Cambridge: Cambridge University Press 2014), 528 .

113. Communist Party of Vietnam, Văn Kiện Đại Hội Đảng Lần Thứ XI [Documents of the CPV’s Congress XI] (Hanoi: The National Political Publisher, 2011) at 76.

114. Ibid at 85.

115. Report No 11/TTr-UBTVQH13 on the Implementation of the Policy on Research on Amending and Supplementing the 1992 Constitution by the Standing Committee of the National Assembly, dated 8 February 2011 at item 3.

116. Report on Basic Issues for Amendment in the 1992 Constitution by the Drafting Committee, dated 27 February 2012 at para 2.

117. See Resolutions of the CPV Central Committee Sessions 2 and 5, 2012, on amending the 1992 Constitution, online: Communist Party of Vietnam Online Newspaper <http://dangcongsan.vn/tu-lieu-van-kien/van-kien-dang/nghi-quyet-bch-trung-uong.html>.

* LLB (Hanoi Law University, Hanoi), LLM (Raoul Wallenberg, Lund University), PhD (Mahidol University); Associate Professor, Lecturer, Head of Constitutional and Administrative Law Department, School of Law, Vietnam National University, Hanoi.

** LLB (Hons) (School of Law, Vietnam National University, Hanoi), LLM (School of Law, University of Glasgow), PhD (School of Law, University of Glasgow); Lecturer, School of Law, Vietnam National University, Hanoi.

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Constitutional Debate and Development on Human Rights in Vietnam

  • Giao Cong VU (a1) and Kien TRAN (a2)

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