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					            Presentation paper at training course on
     "Partnership building for international criminal justice"
                                  Hanoi 4/2004

           Legal framework for Protection Human Rights of Vietnam

                                     By Legal specialist Le Thi Hoa
                               Department for Criminal and Administrative Law
                                     Ministry of Justice of Vietnam


The struggle history of the progressive human is the history of against oppression,
men' liberation, building an equal, democratic, civilized society and also is the
history of struggle for human rights and for human-being. The history of struggle for
human rights of Vietnam is history of struggle for independence of the nation and
freedom for people, right of individual to life. The Declaration of Independence, The
1946 Constitution of Vietnam are creative the first quintessences to set up a
government of the people, for the people and by the people.

Since 1986 The renovation of Vietnam have been creating dynamic developments,
positive changes in all fields of economical, political and social life of the nation.
Building a state based on the rule of law has been a central task in the political
renovation process. Originated from the right awareness that the law making and law
implementation of the State as well as the effective exercise of citizen's rights in
accordance with the Constitution and the laws will better ensure the enjoyment of
human rights of all the people. The law system of Vietnam has grasped thoroughly
above mentioned basic thoughts, that can be seen in the promulgation of the new
constitution- the Constitution of the comprehensive renovation of the nation,
accompanied by a system of codes, laws, ordinances, decrees... in order to make
detail the provisions of the Constitution relating to the citizen's rights and the
implementation of those rights.

I. The general principles of Vietnamese Law on human rights protection

1. The principle of self-determination of the nation

The 1992 Constitution of Vietnam affirms that the State of Vietnam belongs to the
people, by the people and for the people. The implementation of the right on
determination of Vietnamese nation is followed by the mechanism of Party
leadership, people's mastery and State management, in order to make a decision on
political and economical regime. The State, with its legal tools created good
conditions for the people to participate in State management and social works as
much as they can.

2. The principle of equality before the law and under the protection of the law

In Vietnam, every people are equal in all fields of political, civil, economical,
cultural and social life. The 1992 Constitution affirms that "All citizens are equal
before the law". The State carries out a policy of comprehensive development and
gradually raises the material and spiritual living conditions of the national
minorities.

In order to specify the basic provisions of the Constitution, the State of Vietnam has
been enacting many normative legal documents on these rights:

 - In the political field, the most important right of citizen is the right to election and
standing for election to state bodies. The 1992 Constitution provides: Vietnamese
citizen, regardless of nationality, sex, social background, religious belief, cultural
standard, occupation, time of residence, shall, upon reaching the age of eighteen,
have the right to vote, and upon reaching the age of twenty-one, have the right to
stand for election to the National Assembly and the People's Councils in accordance
with the provisions of the law.

- In the civil field, every people are equal to participate in civil transaction. That
right is stipulated in the Civil Code and many other laws.

- In other fields, equality before the law is regulated as a principle in legal
documents, for instance: The Criminal Code, the Civil Code, The Criminal
Procedure Code, Labor Code... In addition, the legal system of Vietnam provides a
effective mechanism to implement these rights, especially 1999 Nationality Law,
Law on the press, 2000 Marriage and Family Law, Company Law, Education Law,
1998 Appeal and Denounce Law.

3. The principle of sexual equality

The legal system of Vietnam guarantees the equal right between men and women in
civil-political field, for example: the right to vote and the right to stand for election
to the National Assembly and the People's Councils. The Constitution stipulates that
male and female citizens have equal rights in all fields-politic, economic, culture,
social, and the family.

- In the civil field, they are equal on capacities to enjoy in the civil rights and
obligations.




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- The freedom of enterprise rights, 1992 Constitution and Civil Code of Vietnam
provides that women like men have the rights in freedom of enterprise in the same
standards and conditions.

- all acts of discrimination against women and all acts damaging women's dignity are
strictly banned.

4. The principle of prohibition against retroaction in criminal procedure

Prohibition against retroaction in criminal procedure is a very important principle to
ensure the rights in a rule of law state. The 1999 Criminal Code provides that "The
provision applying to a criminal act shall be the provision currently in force at the
time such criminal act is committed.

Provisions defining a new offense, a heavier penalty, a new aggravating
circumstance or restricting the scope of application of suspended sentences, the
exemption of penal liability and/or penalties, the reduction of penalties or remission
of criminal records, and other provisions not in favor of the offenders, shall not
apply to acts of criminal offence committed before such provisions take effect".

II. The civil and political rights

1. The right to life

In the manner as partner of the International Convention on civil and political rights,
The State of Vietnam states that "In the socialist Republic of Vietnam human rights
in the political, civil, economic, cultural and social fields are respected. They are
embodied in the citizen's rights and are determined by the Constitution and the law".
It also affirms that the citizens and foreigners residing in Vietnam shall enjoy
inviolability of the person and the protection of the law with regard to his life,
health, honor and dignity. These provisions are more detailed in the 1999 Criminal
Code and Criminal procedure Code of Vietnam.

First, criminal acts violating the right to life of men are the most serious crimes and
these offences will be strictly punished. The Criminal Code has 18 Articles relating
to crimes violating directly or indirectly the right to life of a person.

The State of Vietnam also care to protect lives of persons who are participating in
criminal procedure process, especially the defendants and the accuseds.

At present, crime situation is still complicate, and the needs of crime prevention and
combat, Vietnam still retain death penalty. However, the State of Vietnam has a
policy to narrow the scope of application of death penalty and will to abolish in the
future. The death penalty is only applied to particularly serious crimes: terror,
murder, rape, drug trafficking... and only used in some cases.


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2. Strictly forbidden to use harassment and coercion, torture

The 1992 Constitution provides that "The citizen shall enjoy inviolability of the
person and the protection of the law with regard to his life, health, honor and
dignity. No one can be arrested in the absence of a ruling by the People's Court, a
ruling or sanction of the People's Office of Supervision and Control except in case of
flagrant offenses. Taking a person into, or holding him in, custody must be done
with full observance of the law. It is strictly forbidden to use all forms of harassment
and coercion, torture, violation of his honor and dignity, against a citizen."

These provisions are more detailed in the 1999 Criminal Code and Criminal
Procedure Code of Vietnam.

3. Prohibition against slavery, hard labour or forced labour

The 1994 Labour Code of Vietnam provides that every persons have the rights to
work, choose his work and occupation,...regardless of sex, social background,
religious belief, cultural standard; forbiddance mal-treatment and forced labour by
any means. The Criminal Code also forbids person trafficking, especially women
and children.
4. The right to security of person of citizen.
The Constitution of Vietnam affirms that the citizen shall enjoy inviolability of the
person and the protection of the law with regard to his life, health, honor and dignity.
This provision is more detailed in the Criminal Procedure Code. That code rules "
No one can be arrested in the absence of a ruling by the People's Court, a ruling or
sanction of the People's Office of Supervision and Control. Arrest and detention of a
person must be undertaken pursuant to the provisions of this Code. Any coercion or
bodily torture are strictly prohibited". And range of articles provide particularly the
basic, condition, order, procedure, and jurisdiction to apply, change or cancel the
measures in arresting, holding in custody, prosecuting, bringing to trial.
The Criminal Code regulates the acts to violate these rights will be strictly punished.

In addition, the Constitution provides that: any person who has been arrested, held in
custody, prosecuted, brought to trial in violation of the law shall be entitled to
damages for any material harm suffered and his reputation shall be rehabilitated.
Anybody who contravenes the law in arresting, holding in custody, prosecuting,
bringing to trial another persons thereby causing him damage shall be dealt with
severely.

5. Rights of detainee to humanitarian treatment

In Vietnam, detainee or prisoner has the rights to humanitarian treatment and dignity
respect. The Criminal Code provides that.


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Rights to humanitarian treatment are also stipulated in the purpose of penalty
Article. Penalties aim not only to punish offenders but also to rehabilitate them into
persons useful to society and having the sense of observing laws and regulations of
the socialist life, preventing them from committing new crimes. Penalties also aim to
educate other person to respect laws and prevent and combat crimes.

6. Prohibition against imprisonment merely on the ground of inability to fulfil a
contractual obligation.

Under the Constitution, the Civil Code, the Ordinance on Economic Contract, and
the Ordinance on Civil Contract, a person cannot be deprived of his/her liberty
merely for the inability to fulfil a contractual obligation.

7. The right to freedom of movement and of residence
Article 68 of the Constitution confirms: "The citizen shall enjoy freedom of
movement and of residence within the country; he can freely travel abroad and
return home from abroad in accordance with the provisions of the law". The right is
also stipulated specifically in the Civil Code.
8. Rights and duties of foreigners residing in Vietnam.

Foreigners residing lawfully in Vietnam are respected. They shall receive State
protection with regard to their lives, possessions and legitimate interests in
accordance with the provisions of Vietnamese law.

Rights and duties of foreigners residing in Vietnam are stipulated in the
Constitution, Law on foreign investment, Ordinance on entry, exit and residence of
foreigners in Vietnam, Decree No 21/2001/ND-CP guiding the implementation of
the above Ordinance.

9. The right to be recognized of legal capacity.

Under the provisions of the Civil Code, every individual has an equivalent capacity
in civil law; the capacity in civil law of an individual commences from the
individual's birth and terminates at the time of the individual's death.

Legal capacity of individual is stipulated not only in the Civil Code, but also in
many other documents related to labour, marriage and family, civil transaction.

10. The right to be protected against arbitrary or unlawful interference with
domicile or correspondence.

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The Constitution stipulates: "The citizen is entitled to the inviolability of his
domicile. No one can enter the domicile of another person without his consent,
except in cases authorized by the law. Safety and secrecy are guaranteed to the
citizen correspondence, telephone conversations and telegrams. Domiciliary
searches and the opening, control, and confiscation of a citizen's correspondence and
telegrams can only be done by a competent authority in accordance with the
provisions of the law".

The right is stipulated in other legal documents such as: Penal Code, Criminal
Procedure Code, and Decree No 109/1997/ND-CP dated November 12th 1997.

11. The right to freedom of belief and religion.

The Constitution prescribes: "The citizen shall enjoy freedom of belief and of
religion; he can follow any religion or follow none. All religions are equal before the
law. The places of worship of all faiths and religions are protected by the law. No
one can violate freedom of belief and of religion; nor can anyone misuse beliefs and
religions to contravene the law and State policies".

The right is also stipulated in detail in the Civil Code, Penal Code, Land Law,
Publishing Law and Decree No 26/1999/ND-CP dated April 19th 1999 on religious
activities.

12. The right to freedom of opinion and speech.

Under the provision of the Constitution, "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 demonstrations in accordance with the provisions of the
law" and "has the right to participate in the discussion of problems of the country
and the region; he can send petitions to State organs and vote in referendums
organised by the State".

The right to freedom of opinion and speech is stipulated specifically in the
Publishing Law and the Press Law.

13. The right to assemble.

The principle of respect and protection of the right to assemble has been stipulated in
all Constitution of the Socialist Republic of Vietnam, from the 1946 Constitution to
the 1992 one.

14. The right to freedom of association.


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The right to freedom of association is prescribed in the Civil Code, Penal Code, and
Law on Vietnamese Fatherland Front, Trade Union Law.

15. Prohibition against propaganda of war and hatred, discrimination of race.

The Constitution stipulates: "The Socialist Republic of Vietnam carries out a policy
of peace and friendship, seeks to expand its relations and cooperation with all
countries in the world regardless of political and social regime on the basis of
respect for each other's independence, sovereignty and territorial integrity, non-
interference in each other's internal affairs, equality, and mutual interest; it seeks to
strengthen solidarity, friendship and cooperation with the socialist countries and
neighbouring countries; it actively supports and participates in the common struggle
of the peoples of the world for peace, national independence, democracy and social
progress".

Other legal document: The Penal Code.

16. The right to marriage.

The right is prescribed in the Constitution, Civil Code, and Law on Marriage and
Family.

According to the above documents, marriage and the family are protected by the
State; marriage shall be based on the principle of monogamy; men and women
meeting the requirements provided by the law on marriage and family have the right
to a free marriage, neither party shall compel or defraud another party, no one shall
obstruct a voluntary and progressive marriage or force people to be married.

17. The right to participate in the administration of the State and management
of society.

The right is stipulated in the Constitution, Press Law, Education Law, Ordinance on
Complaint and denunciation, and Ordinance on anti-corruption.

III. The Economic, Social and Cultural rights

1. The right to work.




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The right to work is stipulated in the Constitution and the Labour Code as follow:
"The citizen has both the right and the duty to work. The State and society shall
work out plans to create ever more employment for the working people".

2. The right to freedom of business.

Under the Civil Code, the 1999 Law on Enterprise and many other legal normative
documents, the right to freedom of business of an individual is respected and
protected by law. Individuals have the right to freely choose the scale, areas and
fields of their business, forms and ways to mobilize capital, to freely enter into
contracts, to hire employees, etc.

3. The right of ownership

The right of ownership is prescribed in the Constitution and the Civil Code. The
Constitution provides that "the citizen enjoys the right of ownership with regard to
his lawful income, saving, housing, chattel, means of production funds and other
possessions in enterprises or other economic organisations; with regard to land
entrusted by the State for use, the matter is regulated by the provisions of Articles 17
and 18. The State protects the citizen's right of lawful ownership and right of
inheritance".

4. The right to enjoy just and favourable condition of work.

The Labour Code provides that "workers are entitled to a wage based on the
agreement reached with the employer, but not lower than the minimum wage
prescribed by the State, and consistent with the productivity, quality and efficiency
of the work performed; to labour protection, to safe and healthy conditions of work,
to statutory rest periods, annual leave with pay, and to social security in accordance
with the provisions of the law".

In addition, Vietnamese law also stipulates economic right of people who is not
Vietnamese citizen; the right to form and join trade unions; the right to enjoy social
security including social insurance; the right to protection of family, maternity and
children (protection of maternity before and after giving birth, having the State's
assistance in marriage and care of children); the right to adequate standard of living
(the right to adequate food, clothing, housing; the right to continuous improvement
of living condition - Vietnam has established the banking system for the poor,


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provided free legal aid to poor people and social policy beneficiaries and
implemented 19 programs and projects on hunger elimination and poverty
alleviation); the right to enjoy the care on physical and mental health; the right to
education (free and compulsory primary education, appropriate scholarship policy,
right of parent to choose school for their children, encouraging the development of
school system at all level,...), the right to freedom of scientific research and creative
activity. All the above rights are regulated in the Constitution, Civil Code, Penal
Code, Labour Code, Law on Education, Law on Primary education, Law on People's
Heath Protection, Ordinance on Population, etc.

IV. The right of the child, the right of the disadvantaged and vulnerable groups
are stipulated in detail in the mentioned legal documents and the Law on Protection
and Care of Children, Ordinance on Disabled People and Ordinance on Elderly
People.

V. Treaties have been singed, ratified or acceded by Vietnam:

- International Convention on Civil and Political Rights (ICCPR);

- International Convention on Economic, Social and Cultural Rights (ICESCR);

- Covenant on the Elimination of All forms of Discrimination against Women
(CEDAW);

- Convention on the Right of the Child (CRC) and two Optional Protocols to the
CRC.

VI. Comment.

In general, Vietnamese legal framework for protection human rights is quite
comprehensive. The fundamental human rights have been stipulated adequately in
the Constitution, Codes, Laws and other legal documents. In fact, Vietnam has great
effort in law making in order to create a perfect mechanism for human rights
protection, ensure the compatibility with HR treaties which have been singed,
ratified or acceded by the Vietnam Government. Now the State of Vietnam tries hard
to implement effectively those policies and regulations.




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