Vietnam: Proposed Constitutional Amendments Go Against International Law
|Publication Date||15 April 2013|
|Cite as||Article 19, Vietnam: Proposed Constitutional Amendments Go Against International Law, 15 April 2013, available at: http://www.refworld.org/docid/516c08ea4.html [accessed 18 October 2017]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
ARTICLE 19 warns that proposed amendments to the 1992 Constitution for the Socialist Republic of Vietnam (Draft Constitution) fail to protect fundamental human rights, in particular the right to freedom of expression and information. Protections for these rights must be formulated more comprehensively and in more precise language, and broad and discriminatory restrictions must be removed.
ARTICLE 19 welcomes the initiative of the National Assembly to amend Vietnam's Constitution and publically circulate the Draft Constitution for open consultations. We welcome the opportunity to contribute our analysis of the amendments, and hope that this is of assistance to the Vietnamese government and other domestic stakeholders in terms of understanding Vietnam's obligations under international human rights law.
Despite the many shortcomings of the proposed amendments, including those discussed below, the proposed revisions include some positive features, namely:
The preamble affirms respect for and the guarantee of human rights, the fostering of democracy, and for government of the people, for the people and by the people.
The second chapter is dedicated to the recognition, respect, protection, and guarantee of human rights (Article 15.1).
New rights are added in the Draft Constitution, including: the right to enjoy and participate in cultural life (Article 44), freedom to choose one's language of communication (Article 45), and the right to live in a "fresh environment" (Article 46).
Domestic effect of international human rights law
The Draft Constitution fails to specify the legal status of international human rights treaties that Vietnam has signed and ratified and is obliged to implement through domestic law. Moreover, no provision specifies the powers for signing and ratifying international treaties. In particular, ARTICLE 19 notes that Vietnam is a party to the International Covenant on Civil and Political Rights (ICCPR), which protects the right to freedom of expression and information at Article 19.
The Draft Constitution must make a clear commitment to ensuring that treaties and international agreements that have been signed and ratified have domestic legal effect, and may only be repealed, modified or suspended in the manner provided for in the treaties themselves.
The rights to freedom of expression and information, freedom of peaceful assembly and freedom of association
The Draft Constitution gives limited protection to the right to freedom of expression and information and related rights through Article 26 in the following terms:
The citizen shall enjoy freedom of opinion and speech, freedom of the press, the right to be informed, and the right to assemble, form associations and hold strikes in accordance with the provisions of the law.
ARTICLE 19 is concerned that so many distinct rights are included within one provision, and that inadequate protection is given to each. We recommend separate protections for the rights to: i) freedom of opinion; ii) freedom of expression; iii) access to information; iv) freedom of the press, and v) freedom of peaceful assembly and of association.
The following shortcomings with Article 26 of the Draft Constitution must also be addressed:
Each right must be guaranteed to all people, irrespective of nationality.
The right to freedom of opinion, protected under Article 19(1) of the ICCPR, should be protected without qualification. No law or constitutional provision should permit limitations on the right to hold an opinion. Moreover, no person should be subject to impairment of their rights on the basis of their actual, supposed or perceived opinions.
The right to freedom of expression, protected under Article 19(2) of the ICCPR, must be interpreted broadly and specify that the right:
Includes the freedom to seek, receive and impart information;
Protects ideas of all kinds, including: political discourse, commentary on one's own and on public affairs, canvassing, discussion of human rights, journalism, cultural and artistic expression, teaching, and religious discourse. It even embraces expression that may be regarded as deeply offensive;
Applies regardless of frontiers;
May be exercised through any media of a person's choice. This includes but is not limited to: oral, written or printed communications; artistic expression; and audio-visual, electronic and Internet-based modes of communication.
The right to "be informed" should be reformulated to expressly protect the "right to access information." ARTICLE 19 recalls that the Human Rights Committee, in General Comment No. 34, have stated:
[T]o give effect to the right of access to information, States parties should proactively put in the public domain Government information of public interest. States parties should make every to ensure, easy, prompt effective and practical access to such information. States should parties should also enact the necessary procedures, whereby one may gain access to information, such as by means of freedom of information legislation. The procedures should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant. Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information. Authorities should provide reasons for any refusal to provide access to information. Arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failure to respond to requests.
For a comparative perspective, see the Constitution of Thailand (1997), at Article 56; the Constitution of Kenya (2010), at Article 35; and the Constitution of South Africa (1996), at Article 32.
The right to "assemble" should be reformulated as the "right to freedom of peaceful assembly," to reflect Article 21 of the ICCPR. If possible, the Constitution should establish a presumption in favour of holding an assembly, and provide for the State's positive obligation to facilitate and protect public assemblies at the organisers' preferred location and time. For a comparative perspective, see the Constitution of Romania (1991), at Article 39.
The right to "freedom of the press" should be made more comprehensive. It should include: protections for media freedom and independence online as well as offline; guarantee editorial independence; protect the right of journalists to protect their sources; protect print and online media from any licensing or registration requirement; and provisions to guarantee the independence and pluralism of the broadcasting media sector. From a comparative perspective, see the Constitution of Kenya (2010), at Article 34.
The right to "association" should also guarantee the right to form trade unions independent of the government, and should further provide that no person may be compelled to join an association against his or her will.
Consideration should be given to including the rights to academic and research freedom (currently Article 43 of the Draft Constitution) alongside or within the protection of the right to freedom of expression. From a comparative perspective, see Constitution of South Africa (1996), at Article 16; and Constitution of Kenya (2010), at Article 33.
Consideration should be given to including the rights to participate in cultural life (currently Article 44 of the Draft Constitution) and the right to communicate in the language of one's choice (currently Article 45 of the Draft Constitution) within or alongside the protection of the right to freedom of expression.
Limitations on the rights to freedom of expression and information, and to freedom of peaceful assembly and of association
A considerable number of provisions in the Draft Constitution allow for broad restrictions to be placed upon all of the rights provided for in Chapter 2 in a manner that does not meet international standards.
Article 15 of the Draft Constitution provides that all human rights are "recognised, respected, protected and guaranteed according to the Constitution and the law" (Article 15.1) and may be restricted "in case of necessity for the purpose of national defence, national security, social order, ethics and community's health" (Article 15.2). This provision appears to apply to the interpretation of all guarantees within Chapter 2, but is not expressly limited to Chapter 2. While emergencies may be declared in accordance with Article 75.14 and Article 79.8 of the Draft Constitution, the impact of these declarations on the protection of human rights is not specified.
The limitation in Article 15 fails to distinguish between: rights that may not legitimately be subject to limitation (e.g. the right to freedom of opinion, Article 19(1), ICCPR), and rights that may be subject to narrow limitations (e.g. the right to freedom of expression, Article 19(2) and (3), ICCPR), and finally rights that cannot be derogated from in times of emergency (listed in Article 4(2), ICCPR). Article 15(2) of the Draft Law must be revised to make clear the distinction between different types of human rights protections, in conformity with the provisions of the ICCPR.
Limitations on the right to freedom of expression and information, and the right to freedom of peaceful assembly, must only be limited according to the three-part test under Article 19(3) and Article 21 of the ICCPR respectively. Limitations must be:
Provided by law: any law limiting the right to freedom of expression must "be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly and it must be made accessible to the public."
Pursue a legitimate aim: respect for the rights or reputations of others, the protection of national security or of public order; or the protection of public health or morals. Additionally, the right to freedom of peaceful assembly may also be restricted to protect public safety.
Necessary and proportionate: States must demonstrate in a "specific and individualised fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat." Moreover, the restriction must not be overly broad and must be the least restrictive means available for achieving the protective function.
It is not legitimate for all of the rights to be guaranteed only to the extent provided by the Constitution or law - particularly where these do not comply with international standards. The qualification "according to the Constitution and the law" must be deleted from Article 5.1, as it renders the enjoyment of constitutional rights contingent on future acts of legislation that may erode those rights.
The term "public morals" in Article 5.2 should be interpreted in line with the limited scope given to the concept under international human rights law and not interpreted to permit broad restrictions on rights. The State bears the burden of demonstrating that any limitation on the right to freedom of expression to protect "public morals" is essential to the maintenance of respect for fundamental values of the community. While States enjoy a margin of appreciation in this regard, this discretionary leeway does not permit public morals to be invoked to justify discriminatory practices or to perpetuate prejudice or promote intolerance. International human rights bodies have noted that concepts of morality are constantly evolving, that any limitation "must be based on principles not deriving exclusively from a single tradition", and "must be understood in the light of the universality of human rights and the principle of non-discrimination."
Furthermore, Article 15.2 must make specific reference to the requirement that in addition to being "necessary" in the pursuit of a legitimate aim, restrictions must also be provided for by law and proportionate.
In relation to the right to religious freedom, the second clause within Article 25.3 provides that no one can "misuse beliefs and religions to contravene the law and State policies." Again, this provision may be subject to broad interpretation and be used to restrict freedom of religion or belief as well as the right to freedom of expression and information. ARTICLE 19 recommends that the second clause within Article 25.3 be deleted.
ARTICLE 19 is further concerned by a number of supplementary provisions that may be invoked to further restrict fundamental rights, including the right to freedom of expression and information, or the right to freedom of peaceful assembly and of association:
Article 16 is a new provision and prohibits "the abuse of human and civic rights to violate the interests of the country and the nation, the rights and lawful interests of other people."
What constitutes the "interests of the country and the nation, the rights and lawful interests of other people" is a broad and ambiguous qualification on the enjoyment of human rights that does not comply with international standards. ARTICLE 19 recommends that Article 16 be redrafted to reflect Article 5(1) of the ICCPR, which provides that no guarantees in the Covenant permit a State, group or person any right to engage in activities aimed at the "destruction" of rights and freedoms. It is important that this provision applies to the State as much as any other entity or person, and that it sets the particularly high threshold of "destruction" rather than "interference" or "violation".
Article 11.2 of the Draft Constitution provides for the severe punishment of "all acts directed against the independence, sovereignty, unity and territorial integrity of the motherland, against the construction and defence of the socialist Vietnamese motherland, violating the interests of the motherland and of the people." Similarly, Article 47 provides the "obligation of being loyal to his [sic] motherland", and specifies that "betraying one's motherland is the most serious crime", and Article 69 makes national defence a duty of all people.
The relationship between these provisions and the guarantee of rights contained in the second chapter is not clear. ARTICLE 19 reiterates that any restriction on the right to freedom of expression and information or the rights to freedom of peaceful assembly to protect national security must be narrowly tailored to comply with the three-part test under Article 19(3) or Article 21 of the ICCPR. Such restrictions are not legitimate unless their genuine purpose and demonstrable effect is to protect a country's existence or its territorial integrity against the use or threat of force, or its capacity to respond to the use or threat of force, whether from an external source, such as a military threat, or an internal source, such as incitement to violent overthrow of the government. For further information, see the Johannesburg Principles on National Security, Freedom of Expression, and Access to Information (ARTICLE 19, 1996).
ARTICLE 19 recommends that Article 11.2, Article 47, and Article 69 are deleted to protect the right to freedom of expression and information, as well as the rights to freedom of peaceful assembly and association.
Article 20 provides that a "citizen's rights are inseparable from his duties." While certain rights carry with them responsibilities, it should not be the case that the protection of human rights is made contingent upon the exercise of duties.
ARTICLE 19 recommends that Article 20 of the Draft Constitution be deleted.
Article 64.5 provides that "all activities in the fields of culture and information that are detrimental to national interests, and destructive of the personality, morals, and fine lifestyle of the Vietnamese; and the propaganda of all reactionary and depraved thought, publications and other forms shall be strictly banned. Superstitions are to be eliminated."
This provision is contained within Chapter 3, and therefore its relationship to the guarantee of rights in Chapter 2 is not clear. In any case, it is entirely incompatible with international standards on the right to freedom of expression. The right to freedom of expression encompasses all forms of expression, including artistic expression through any media of a person's choice. Any content-based restrictions on the arts must be justified according to the three-part test under Article 19(3) of the ICCPR. ARTICLE 19 recommends the repeal of Article 64.5
ARTICLE 19 is concerned that the right to lodge complaints and denunciations against the State is qualified in Article 31.3 with the prohibition on "misuse" of this right "to make complaints and denunciations with the aim of slandering and causing harm to another person."
While restrictions may be placed on the right to freedom of expression to protect the rights of others under Article 19(3) of the ICCPR, such restrictions must conform with the three-part test outlined above and sanctions to protect reputations must only be foreseen within the civil law. Moreover, political expression should be afforded heightened protection and only be subject to limitation in exceptional circumstances. Criminal defamation provisions should never be used to protect public officials or institutions from criticism or shield them from scrutiny. ARTICLE 19 recommends the deletion of Article 31.3.
Article 17.2 provides that "no one is discriminated in the political, economic, cultural and social life for any reasons". However, many provisions in the Constitution contradict guarantees against discrimination.
Many of the rights protections within Chapter 2 of the Draft Constitution are conferred on the basis of citizenship, defined as a person of Vietnamese nationality (Article 18.1). In addition to the right to freedom of opinion and expression (above), rights limited in this way also include equality before the law (Article 17.1), and the prohibition on torture (Article 22).
Non-nationals are expressly discriminated against. Article 51 provides, without using rights-based language, that the State is only obliged to protect foreigners' lives, possessions and "legitimate interests under Vietnamese law".
All rights contained within the ICCPR, with the exception of the right to vote (Article 25, ICCPR), must be guaranteed to all people within the territory and subject to the jurisdiction of any State without discrimination (Article 2(1), ICCPR).
Provisions on non-discrimination should also provide for protected characteristics that it is impermissible to discriminate on the basis of. The protected grounds against discrimination should include but not be limited to: race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status (Article 2(1) ICCPR). Protected grounds against discrimination under international human rights law are also understood to include age, disability, sexual orientation, and gender identity. States may only discriminate against non-nationals in respect of the right to vote under Article 25 of the ICCPR (see: HR Committee, General Comment No. 15).
ARTICLE 19 recommends that the Draft Constitution ensure that all rights are guaranteed to all people on the basis of non-discrimination and that an expansive list of protected grounds is included. Article 51 and any other provision restricting the enjoyment of rights on the basis of nationality, other than the right to vote, must be repealed.
Fair trial and deprivation of liberty
Article 32 (Article 72 amended and supplemented) stipulates rights within criminal procedure, including the right "to be judged by a court of law."
ARTICLE 19 points out that under international standards, including Articles 14 and 15 of the ICCPR, everyone has the right to a fair trial in criminal cases, which entails the right to be heard by an "compatent, independent and impartial tribunal established by law", in public, and within a reasonable amount of time. Hence, in order to comply with international standards, the domestic judicial system must meet, inter alia, the components of:
Independence: if the independence of the judiciary is not guaranteed, recourse to the judiciary as a mechanism for safeguarding one's rights is of little use. The UN Basic Principles on the Independence of the Judiciary set out certain requirements that have to be met for a court to be considered 'independent': a) conditions of service and tenure; b) manner of appointment and discharge; and c) degree of stability and logistical protection against outside pressure and harassment. The existence of a tribunal should not depend on the discretion of the executive branch but be based on an enactment by the legislature.
Impartiality: there must be impartiality in the objective sense (which examines whether the judge offered procedural guarantees sufficient to exclude any legitimate doubt of partiality), as well as the subjective sense (there should not be any appearance of impartiality).
These principles are not sufficiently reflected in Article 32. ARTICLE 19 recommends that the Draft Constitution explicitly stipulate that everyone is entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law, with all procedural guarantees as provided for by international human rights law.
ARTICLE 19 welcomes the initiative of the National Assembly to amend Vietnam's Constitution, but insists that this must be regarded as an opportunity to strengthen protections for fundamental rights rather than an opportunity to erode them. In this respect, we urge the National Assembly to consider our recommendations and ensure that the text of the Draft Constitution is brought in line with international standards on the right to freedom of expression and information.