State of emergency in vietnamese law reflections on the government response to the covid 19 pandemic

State of Emergency in Vietnamese Law Reflections on the Government Response to the Covid-19 Pandemic State of Emergency in Vietnamese Law Reflections on the Government Response to the Covid-19 Pandemic

State of Emergency in Vietnamese Law: Reflections on the Government Response to the Covid-19 Pandemic

This article explores the Vietnamese government’s response to the Covid-19 pandemic, to examine the rationality and effectiveness of Vietnamese law on the state of emergency In so doing, it investigates interpretations of the Constitution of Vietnam regarding emergency powers The authors argue that although Vietnam has various regulatory provisions on state of emergency (including: emergency measures; decision-making processes; substantial criteria for entering and lifting the state of emergency; and legal remedies for, and consequences of, violation of emergency measures) many are not clearly or properly defined Legally, emergency powers, especially the power of the executive, therefore, cannot be controlled With tacit permission from the Communist Party, the loopholes in the current legal framework on the state emergency have allowed the application of extra-legal government decisions in response to the Covid-19, revealing structural weaknesses in the rule of law

in Vietnam

Since the first case was identified in China in December 2019, Covid-19 (Coronavirus disease 2019) has quickly spread worldwide, leading the WHO (World Health Organization) to declare it a Public Health Emergency of International Concern in January 2020(WHO, 2020a) and a Global Pandemic

in March 2020 (WHO, 2020b) The pandemic has dramatically changed the world, affecting not only public health but also the social and economic life of almost all countries In Vietnam, then Prime Minister Nguyen Xuan Phuc said that ‘The impact of the Covid-19 pandemic on our country is very serious due to our deeply integrated economy, large openness, and our limited autonomy and resilience against the disease’ (Government of Vietnam, 2020) The Covid-19 pandemic meant Vietnam's GDP increased by only 2.91 per cent in 2020 (General Statistics Office of Vietnam, 2020), which was the lowest growth rate of the decade 2011-20, and, in fact, a 30-year low (Nguyen Phuong, 2020).1 Like many other countries, Vietnam has taken various measures in response to the Covid-19 pandemic, including derogation of human rights standards Nevertheless, Vietnam has not yet declared a state of emergency Instead, it has employed the model that Ferejohn and Pasquino have

identified as ‘special and temporary powers to the executive’ (Ferejohn and Pasquino, 2004: 217),

with the Prime Minister issuing a series of anti-epidemic Directives This is despite the 2013 Constitution stipulating that only the Standing Committee of the National Assembly can promulgate such measures and only the State President can declare them

This paper analyses the Vietnamese government’s response to the Covid-19 pandemic from the perspective of Vietnamese constitutional mechanisms relating to emergency powers The first part discusses the provisions on emergency powers in the 2013 Vietnamese Constitution and the relevant legal documents The next part analyses the Vietnamese Prime Minister’s Directives to deal with the Covid-19 pandemic, which are legally overriding constitutional emergency powers The last part explores possible safeguards against the executive abuse of constitutional emergency powers in Vietnam, before concluding

∗ Associate Professor and Head, Department of Constitutional and Administrative Law, and Director, Research Center for Human and Citizen’s Rights, School of Law, Vietnam National University, Hanoi This paper was funded by Vietnam National University Hanoi through a research project titled ‘Reform of current national governance in Vietnam following the orientation of the 13th Communist Party Congress’ (Đổi mới quản trị quốc gia ở Việt Nam hiện nay theo định hướng Đại hội Đảng toàn quốc lần thứ 13)

♣ Professor, School of Law, Vietnam National University, Hanoi

1 See the Gross Domestic Product (GDP) in Vietnam since 2012 at <https://tradingeconomics.com/vietnam/gdp>

The State of Emergency in Vietnamese Law: An Overview

The Development Process since 1945

Vietnamese law regulated states of emergency from soon after the country gained independence from French in August 1945 The first Constitution of Vietnam (the 1946 Constitution) did not provide a definition of a state of emergency but implied one in the case of national defence and security by granting the government the power to ‘[enforce] the law of mobilisation and all necessary measures

to preserve the country’ (art 52.2)

Subsequently, on 29 May 1946, President Ho Chi Minh signed Ordinance 77/L to apply Martial Law, which provides the State President with powers ‘…to activate the martial law and determine the territory in which the martial law will be applied’ when ‘a serious situation occurs like a foreign invasion or a big rebellion’ (art 1) The Law also stipulated that, when martial order is instituted, all local administrative powers were delegated to military commanders, criminal adjudication was given

to military courts, and ‘military force has the right to prohibit assembly and to search the people's homes, in order to expel those who are dangerous to the public order and confiscate weapons’ (art 2)

To concretise this Law, on 10 July 1946, the Ministry of Home Affairs and the Ministry of Justice jointly issued Circular No 220/PC, which added the provision that the martial order must clearly state: i) the places (province, town, district, ward, commune) where martial law is applied; and (ii) the duration of the application of martial law

Like the 1946 Constitution, the 1959 Constitution and the 1980 Constitution did not include a definition of a state of emergency but did make provision for a state of emergency based on national defence and security However, unlike the 1946 Constitution, the right to determine a national defence and security emergency was transferred from the executive branch2 to the legislative branch Specifically, the 1959 and 1980 Constitutions provided that: first, the National Assembly has the right to ‘determine the situation of war and peace’ (art 50.16 of the 1959 Constitution, art 83.13 of the 1980 Constitution); and, second, the Standing Committee of the National Assembly/State Council3 had the right to ‘decide the situation of war and peace’ when the National Assembly is not

in session (art 53.16 of the 1959 Constitution, art 100.20 of the 1980 Constitution), and ‘decide national mobilisation or local mobilisation’ (art 53.17 of the 1959 Constitution, art 100.21 of the 1980 Constitution), as well as ‘decide a curfew situation in the whole country or particular locality’ (art 53.18 of the 1959 Constitution, art 100.21 1980 Constitution)

However, it was not until the 1992 Constitution – which institutionalised the Renovation (Doi Moi) process launched by the Communist Party of Vietnam in 1986 - that the term ‘state of

emergency’ was officially stipulated, and emergency situations were more clearly defined Specifically, according to the 1992 Constitution, the National Assembly has a mandate to ‘determine

a state of emergency and other special measures aimed at ensuring national defence and security’ (art 84.12), while the Standing Committee of the National Assembly (the executive body of the National Assembly, including the Chairman/woman, Deputy Chairmen/women, and other standing members: the ‘Standing Committee’) has a mandate to ‘decide on the proclamation of state of emergency throughout the country or in a particular locality’ (art 91.10) In addition, the State President has a mandate, based on a resolution of the Standing Committee, to proclaim a state of emergency in the whole country or in a particular locality (art 103.6)

Subsequently, on 23 March 2000, the Standing Committee issued an Ordinance on the State of Emergency (Ordinance 2000)4 to concretise the 1992 Constitution’s provisions related to the state of emergency The Ordinance 2000 is the first specialised legal document in Vietnam regulating states

2 According to the 1946 Constitution of Vietnam, the President played the role of the head of state and the leader of the executive branch In later Constitutions (1959,1980,1992, 2013), the President is the head of state only

3 The State Council is a special institution in the 1980 Constitution of Vietnam It serves both as the Standing Committee

of the National Assembly (the standing body of the National Assembly) and as the collective Head of the State

4 This Ordinance has not been publicly disclosed, although it is not on the list of state secret legal documents of Vietnam

No one knows the exact reason for this as there has never been any explanation from any government agency about it, however, the content of the Ordinances suggests that it was not publicly disclosed because some provisions are considered

‘sensitive’

of emergency in a relatively comprehensive way, including special measures to be applied in a state

of emergency (Section II), and a mechanism for management of a state of emergency (Sections III and IV) and handling violations (Section V) This Ordinance indirectly defines a state of emergency

by identifying the context, conditions, and purpose of declaring one, namely:

When there is a major natural or human-caused disaster in the country or many localities, dangerous epidemics spreading on a large scale, seriously threatening property of the state and organisations, people's lives, health, and property, or if the situation seriously threatens national security and social order and safety, the Standing Committee or the State President shall declare a state of emergency to take special measures to promptly prevent and limit the situation, processing and overcoming the consequences, quickly stabilising the situation’(art 1)

Based on art 1 of Ordinance 2000, a number of other regulations also provide for a state of emergency

in specific situations, including a national security emergency (Law on National Security 2004), a national defence emergency (Law on National Defence 2018), an epidemic emergency (Law on Prevention and Control of Infectious diseases 2007), and an emergency situation caused by animal diseases (Law on Veterinary Medicine 2015)

Vietnam's current Constitution (the 2013 Constitution) inherits the 1992 Constitution’s provisions on the state of emergency as it continues to stipulate that the National Assembly has a mandate to determine states of emergency,5 and the Standing Committee has power to declare or cancel a state of emergency in the whole country or in a particular locality,6 while the State President has power, based on the resolutions of the Standing Committee, to proclaim a state of emergency The only difference between the 1992 and 2003 Constitutions in this regard is the provision in the latter that, where the Standing Committee cannot meet, the State President has power to declare or cancel a state of emergency in the whole country or in particular locality.7

A number of laws have reiterated the above provisions of the 2013 Constitution, such as the Law

on Organisation of the National Assembly 2014, the Law on Organisation of the Government 2015, the Law on Promulgation of Legal Documents 2015, the Law on Militia and Self-Defence Force 2019, and the Law on National Defence 2018 Art 57.2 of the Law on Organisation of the National Assembly

2014 also states that the Prime Minister has the mandate to request the Standing Committee to declare a state of emergency nationwide or in a particular locality when necessary

Current Legal Framework for States of Emergency in Vietnam

As discussed earlier, Vietnamese law conferred emergency power on the legislative branch (the National Assembly and its Standing Committee) and, since the 1959 Constitution, partly on the State President These agencies have the power to determine (the National Assembly) and to declare and cancel (the Standing Committee or the State President when the Standing Committee cannot meet)

a state of emergency without being subjected to any challenge from the executive and the judiciary The executive branch (through the Prime Minister as head) can only propose that the National Assembly Standing Committee and the State President declare or cancel a state of emergency, and cannot veto a declaration of a state of emergency The judicial branch (the Court) cannot propose or

5 Specifically, art 70.13 of the 2013 Constitution stipulates that the National Assembly has the mandate: ‘To decide on issues of war and peace; to determine states of emergency and other special measures to ensure national defence and security’

6 Specifically, art 74.10 of the 2013 Constitution states that the Standing Committee of National Assembly has the mandate: ‘To decide on general or partial mobilisation; to declare or cancel a state of emergency throughout the country

or in a particular locality’

7 Specifically, art 88.5 of the 2013 Constitution states that the President has the power: ‘ based on resolutions of the National Assembly or the Standing Committee of the National Assembly, to promulgate or annul decisions to declare a state of war; based on resolutions of the Standing Committee of the National Assembly, to issue an order on general mobilisation or partial mobilisation, to declare or cancel a state of emergency; or, in case the Standing Committee of the National Assembly cannot meet, to declare or cancel a state of emergency nationwide or in a particular locality’

invalidate a declaration of a state of emergency as it has no jurisdiction to do so under the 2013 Constitution

By giving legally supreme emergency power to the legislative branch, Vietnamese constitution-makers prove that they still remain loyal to the socialist state model, in which the legislature plays

a dominant role in the state apparatus (but not in the whole political system, or in society), even though the reform process began in Vietnam more than 35 years ago, in 1986 However, this also reflects a conflict in the constitution-makers’ thinking, because art 2.3 of the 2013 Constitution of Vietnam stipulates (for the first time) that the legislative, executive and judicial bodies ‘…control one another in the exercise of their power’.8 This provision clearly shows an intention to limit the supreme power of the legislative branch (the National Assembly) and put it under the scrutiny of the executive branch (the government) and the judicial branch (the courts)

Regarding human rights issues, when an emergency occurs, the state needs to take measures to maintain public order However, it also requires the derogation of certain human rights and freedoms Therefore, the constitution should contain provisions to ensure a balance between maintaining public order and respecting human rights in the state of emergency.9

In that direction, art 14.2 of the 2013 Constitution of Vietnam stipulates:

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

This provision envisages the possibility of derogating human rights in an emergency and, at the same time, establishing the conditions for such derogation, including that derogations: (i) must be in accordance with the provisions of law; and (ii) can only take place only when necessary for reasons

of national defence, national security, social order and safety, social morality, and community well-being

In addition, a number of other regulations provide for specific derogations of human rights in an emergency According to arts 6,7 and 8 of Ordinance 2000, these derogations may involve: (i) prohibiting people and vehicles from entering and leaving certain areas or from operation for a certain period of time; (ii) requisitioning vehicles and other property of organisations and individuals; (iii) closing theatres, cinemas, and other public places; (iv) prohibiting strikes, school or market lockdown, as well as demonstrations and mass gatherings; (v) suspending road, air, rail, and waterway traffic; (vi) Closing national borders; and (vii) controlling mass media and publishers, and the use of communication facilities Meanwhile, the Law on Prevention and Control of Infectious Diseases 2007 provides for other derogations, including: (i) suspending operation of public food and drink establishments likely to transmit the epidemic disease in epidemic zones; (ii) prohibition by competent health agencies of the sale and use of foods related to disease; (art 52); (iii) prohibiting transportation from epidemic zones of articles, animals, plants, food and other commodities capable

of transmitting the epidemic disease (art 53); (iv) requesting medical inspection and disposal of means of transport before they leave epidemic zones; (v) conducting disinfection and sterilisation on

a large scale; and (vi) culling animals and destroying food and other articles likely to transmit the epidemic disease to humans (art 54).10

From another perspective, a number of regulations provide for specific measures to protect human rights in an emergency situation For example, Ordinance 2000 states that: persons arrested

or detained in accordance with the law must be handled according to criminal proceedings or administrative handling procedures (art 14.1); persons who are arrested and administratively sanctioned for violating the regulations on travel ban, if they have valid identification papers, shall

be released immediately after the travel ban expires; where the arrested person does not have

8 Article 2.3 of the 2013 Constitution provides that: ‘The state power is unified and delegated to state agencies which coordinate with and control one another in the exercise of the legislative, executive and judicial powers’

9 International IDEA Emergency powers, Constitution-Building Primer 18, <https://www.idea.int/publications/catalogue/

emergency-powers>

10 The Law on Veterinary Medicine 2015 also stipulates the measure of destruction and slaughtering applied for infected animals (art 30.1)

identification papers, he/she shall be temporarily detained until the identity of such person is verified but for no more than seventy-two hours (art 14.2.c); persons who are illegally arrested, detained or detained or damaged due to other illegal acts of competent persons shall have their honour and rights restored and compensated for damage according to the provisions of law (art 19.1); and the agency that requisitioned means and property of agencies, organisations or individuals, and so on, must immediately return those means and assets to the lawful owners or managers and use them In case the means and property are lost or damaged, the requisitioned agency shall provide compensate according to the provisions of law (art 19.2) Meanwhile, the Law on Veterinary Medicine 2015 stipulates the state shall subsidise the compulsory destruction/slaughtering of infected animals, animals suspected of being infected, and animal products carrying pathogens on the list of animal diseases in the outbreak declaration (art 30.3)

The Vietnamese Government's Response to the Covid-19 Pandemic in Relation

to Constitutional Emergency Powers

Since independence (1945), Vietnam has applied several emergency measures, mainly in order to deal with threats to national defence and national security, including: military regime management

in major cities in the North after the Geneva Accords of 1954 (Thanh, 2016) and in major cities in the South after the collapse of the Republic of Vietnam in the south (30 April 1975) (Đài, 2015); the first mobilisation in 1946, when President Ho Chi Minh declared the Call for the Nation's Resistance

to the French colonialism (Minh, 1946); the second mobilisation in 1965, when the United States expanded the war by air raids on major cities and industrial zones of the Democratic Republic of Vietnam (in the North);11 and the third mobilisation in 1979, when China invaded six northern border provinces of Vietnam.12

However, from 1979 to now, Vietnam has never officially declared a state of emergency throughout its territory, although provincial governments have a few times declared a state of emergency to cope with natural disasters The most recent example was when five provinces in the Mekong delta region announced a state of emergency due to salt intrusion and drought in January

2020 (Mạnh, 2020)

As a neighbour of China, Vietnam soon recognised the risks it faced from Covid-19, and began preparations to cope with the pandemic from the beginning of 2020 On 30 January 2020, then Prime Minister Nguyen Xuan Phuc requested the Office of Government to prepare a legal basis for the declaration of a state of emergency related to Covid-19 (Thùy, 2020) According to the provisions of arts 2.1 and 3.1 of the Law on Prevention and Control of Infectious Diseases,13 Covid-19 can be considered an infectious disease with the causative agent of Coronavirus, so there were grounds to declare a state of emergency

However, in lieu of requesting the Standing Committee to declare a state of emergency as stipulated in the 2013 Constitution, then Prime Minister Nguyen Xuan Phuc issued a series of Directives to deal with the situation, including: Directive No 05/CT-TTg Directive No 05/CT/TTg of

28 January 2020 on the prevention and control of the Coronavirus outbreak; Directive No 15/CT-TTg

of 17 March 2020, on drastic implementation of the peak phase of Covid-19 pandemic prevention and

11 See: Resolution 102/NQ/TVQH 21/4/1965 of the Standing Committee of National Assembly on Mobilisation

<https://thuvienphapluat.vn/van-ban/bo-may-hanh-chinh/Nghi-quyet-102-NQ-TVQH-dong-vien-cuc-bo-36896.aspx>

12 See: Ordinance No 29-LCT 5/3/1979 of the State President on National Mobilisation to Preserve the Country, Win the Fight against China <https://thuvienphapluat.vn/van-ban/Bo-may-hanh-chinh/Lenh-cong-bo-lenh-tong-dong-vien-trong-ca-nuoc-29-LCT/58903

/noi-dung.aspx> See also: Hồng, Minh Hà, 2019

13 Article 2.1 Law on Prevention and Control of Infectious Diseases stipulates that ‘Infectious disease means a disease that transmits directly or indirectly from humans or animals to humans due to agents of infectious disease’ Article 3.1 provides that ‘Infectious diseases are divided into the following classes:

Class A, consisting of extremely dangerous infectious diseases that can transmit very rapidly and spread widely with high mortality rates or with unknown agents

Class-A infectious diseases include poliomyelitis; influenza A-H5N1; plague: smallpox: Ebola virus Lassa virus and Marburg virus haemorrhagic fever: West Nile fever: yellow fever cholera; SARS and dangerous infectious diseases newly emerging and with unknown agents’

control; and, in particular, Directive No 16/CT-TTg of 31 March 2020, on current emergency measures to prevent and control the Covid-19 pandemic While the contents of the Directives 05 and

15 mainly advise people on pandemic prevention and control and assign tasks to ministries and local authorities, Directive 16 provides for direct emergency measures such as:

Implementation of social distancing nationwide within 15 days from 0:00 am 1 April 2020, according to the principle that family isolates from family, villages isolate from villages and communes isolated from communes and districts isolated from the district, province, isolated from province more than two people

are not to gather outside offices, schools, hospitals and in public places and main border gates, secondary

border gates for passers-by on the border with Laos and Cambodia will be closed temporarily from 00:00 on

1 April 2020,

These Directives, especially Directive 16, have brought good results for Vietnam in the control of the Covid-19 pandemic, and, until May 2021, the country was considered one of the most successful

in fighting the pandemic, with the number of people infected and killed by Covid-19 kept low (Dabla-Norris, Gulde-Wolf, Anne-Marie and Painchaud, 2020; Worldometer, 2021) However, the Directives also reveal confusion on the part of the government and misuse of emergency powers in Vietnam

The use of the word ‘social isolation’ instead of the word ‘physical distance’ or ‘social distancing’

in the early days confused people and authorities at all levels (Anh Phan, 2020) As a result, on the night of 31 January 2020, and on 1 February 2020, local people, especially in big cities, mistakenly believed that there would be complete social isolation, so they flocked to traditional markets and supermarkets to buy stockpiles (food, other essential goods), leading to prices of foods and sanitary equipment, such as masks and hand sanitiser, skyrocketing Further, because the above terms were not precisely defined, different interpretations and implementations developed among local authorities Some provinces prohibited movement by any persons or vehicles from one district to another within the province, while others did not (Anh and Phuong, 2020)

As to the misuse of emergency powers, Directive 16 actually caused human rights derogation without declaration of a state of emergency as required by the 2013 Constitution Although the Prime Minister said that Directive 16 ‘… is only about persuading and mobilising people to voluntarily take emergency measures to protect themselves and their families’ (Hiếu, 2020), its contents and implementation instructions use words such as ‘only’, ‘must’, ‘strictly execute’, ‘strictly deal with violations’ (DanLuat, 2020), apparently obliging all people and institutions to comply This means that the promulgation of Directive 16 is inconsistent with the provisions on the authority to declare

a state of emergency in the 2013 Constitution, Ordinance 2000, and the Law on Prevention and Control of Infectious Diseases 2007 of Vietnam This is because, according to those laws, the Prime Minister can only request the Standing Committee of the National Assembly to declare a state of emergency, and only impose human rights derogation after a state of emergency is declared

Directive 16 and Ordinance 2000 are also inconsistent with the provision of the 2013 Constitution (art 14.2) on the derogation of human rights in an emergency, since art 14.2 provides that ‘human

rights and citizens’ rights may not be limited unless prescribed by a law…’, and ‘law’ here refers to a

legal document adopted by the National Assembly only According to the Law on Promulgation of Legal Documents of Vietnam 2014, both Directive 16 (adopted by the Prime Minister) and Ordinance

2000 (adopted by the Standing Committee of the National Assembly) are lower-level legal documents than a Law They therefore cannot impose specific derogations on human rights by themselves but must rely on relevant provisions in a Law The problem is that Vietnam has never issued any Law concretising the provision on the limitation/derogation of human rights in art 14.2 of the 2013 Constitution Although the Law on Prevention and Control of Infectious Diseases 2007 contains provisions on human rights limitation in a state of emergency resulting from infectious diseases, those provisions are not fully reflected in the provision on the limitation/derogation of human rights in art 14.2 of the 2013 Constitution Because this Law was adopted prior to the 2013 Constitution but its provisions are not reflected in that Constitution, it cannot be a legal basis for Directive 16 or Ordinance 2000 to introduce more specific derogations on human rights than the Constitution allows Further, from an international human rights perspective, Directive 16 does not meet the procedural requirements for a human rights derogation, which include:

(i) official proclamation, which is ‘essential for the maintenance of the principles of legality

and the rule of law at times when they are most needed’ (UN Human Rights Committee, 2001) Official proclamation means derogation measures are only permissible in respect

of public emergencies that are ‘officially proclaimed’ And, when proclaiming a public emergency, states must abide by their constitutional and other provisions of law that govern such a proclamation (E4J, 2017

(ii) international notification, which provides that States seeking to declare a public

emergency, and derogate human rights, must inform the United Nations (UN) Secretary-General.14

Why then has the Vietnamese government’s abuse of emergency powers in response to the Covid-19 pandemic not been prevented? And why do the local people not seek remedies for resulting violations

of human rights? The answer to the first question relates to both the urgency of the situation and the complexity of initiating legal proceedings in relation to emergency powers in Vietnam As in almost all countries, Covid-19 is a sudden and unprecedented challenge for Vietnam, and has had a very serious impact on the economy and society, but the declaration of a state of emergency according

to the 2013 Constitution and relevant laws of Vietnam involves many complicated legal procedures that are very time-consuming In particular, a declaration of a medical emergency must be based on

a range of criteria, such as the number of infected people, the number of deaths, the level of pandemic spread, and the effectiveness of the application of measures to prevent pandemics, and that can lead

to delay in the application of pandemic prevention and control measures In this context, there is a tacit consensus in the Vietnamese political system, led by the Communist Party, that the government should act quickly to cope with the situation, despite the fact that by doing so it would override the emergency powers of both the National Assembly Standing Committee and the State President

Second, lack of resistance to the Vietnamese government’s abuse of emergency powers springs from the weakness of the monitoring mechanisms in relation to emergency powers In essence, misuse of emergency power is a constitutional violation, but Vietnam does not have a clear and effective constitutional review mechanism Instead, it applies a socialist mechanism for constitutionality review by which ‘The National Assembly and its agencies, the State President, the government, People’s Courts, People’s Procuracies, other agencies of the State and all citizens shall defend the Constitution’.15 This mechanism is, in practice, little more than a formality, because it has never actually handled a constitutional review case (Đường, 2015) In the context of the

Covid-19 pandemic, this became even more evident when there was no complaint from any institution or citizens about the Prime Minister’s Directive 16

As to the second question, explanation is found, first, in the incomplete provisions on human

rights limitations in the 2013 Constitution of Vietnam Dealing with the Covid-19 pandemic requires

a great deal of human rights derogation - a sensitive issue for the State of Vietnam, as Vietnam already has a poor human rights record.16 The initiation of legal procedures to review the exercise of emergency powers against the relevant provisions of the 2013 Constitution would inevitably leads to

a debate about the legitimacy and reasonableness of the of human rights derogations imposed by the government in response to Covid-19 It would also require Vietnam to fulfil its obligation of international notification under art 4.3 of ICCPR Both of these Vietnam wants to avoid In these circumstances, Vietnam seeks to eliminate substantive discussions on human rights protection in general, and on human rights derogations in particular Most Vietnamese people, therefore, do not

14 In this regard, see art 4.3 of the ICCPR, which states: ‘Any State Party to the present Covenant availing itself of the right

of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which

it was actuated A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation’

15 See art 119.2 of the 2013 Constitution

16 Vietnam is often criticised by international human rights agencies for its treatment of human rights issues See, for example, Human Rights Watch, 2020; Amnesty International, 2019; Freedom House, 2020; EU, 2021; and US Department of State, 2019

know that there are human rights violations associated with the government's countermeasures against Covid-19

Further, the Vietnamese government cannot, in fact, avoid misusing its emergency powers as it responds to Covid-19, because the art 14.2 of the 2013 Constitution of Vietnam is not consistent with the international rules of human rights law limitations Specifically:

- As mentioned earlier, the National Assembly of Vietnam has never adopted any law

concretising art 14.2 of the 2013 Constitution The consequence is that no one knows the exact justifications allowing for the derogation of human rights (what constitutes national defence? national security? social order and safety? social ethics? community health?) or what constitutes ‘necessity’ Even the phrase ‘prescribed by a law’ in art 14.2 of the 2013 Constitution has not been officially explained In this regard, while the majority of local experts believed that ‘prescribed by a law’ means that human rights can be restricted only

by a Law enacted by the National Assembly, there are some who argue the term should be more widely understood, so the limitation/derogation of human rights can be effected by any legal document adopted by any state agencies including the government, ministries, and people's Committees at all levels (Quang, 2018)

- The content of the art 14.2 of the 2013 Constitution can lead to the misunderstanding that all human rights can be derogated from in an emergency situation Meanwhile, according to the international human rights law, a number of rights are 'non-derogable', meaning that they may not be suspended even in times of the most serious public emergency: the right to life; the right to recognition as a person before the law; freedom of thought, conscience and religion; prohibition of torture, cruel, inhuman or degrading treatment; prohibition of slavery, slave-trade and servitude; and prohibition of imprisonment on the basis of inability

to pay a contractual obligation (E4J, 2017) These non-derogable rights exist not only under the ICCPR but also under customary international law, which binds all States and non-State Parties to the Covenant (E4J, 2017)

- Neither art 14.2 of the 2013 Constitution nor the current laws of Vietnam establish restrictive principles for human rights derogation (UN Human Rights Committee, 2001), which, according to the UN, should include the principle of proportionality (UN Human Rights Committee, 2001) and the principle of non-discrimination.17 Therefore, in Vietnam the decision to derogate human rights often reflects the requirements of the state management alone, without considering the rights and interests of the affected groups (Giao and Hương, 2017)

All these legal loopholes create major challenges for citizens and their lawyers contemplating suing the Vietnamese government seeking remedies for violations of human rights resulting from Directive 16 This is another reason why there has never been lawsuit filed by any Vietnamese citizens or institutions in the administrative court complaining about human rights violations by state agencies in the implementation of Directive 16 This true, even though there are some citizens accused of distributing ‘disinformation’ (Hà and Long, 2021), who have suffered arbitrary restrictions

on their freedom of speech and their rights to privacy (HRW, 2021))

From another perspective, although Vietnam has an administrative procedure law that allows citizens to sue state agencies and public officials, such lawsuits are often fruitless, partly due to the lack of independence of the court system from the Communist Party and other state agencies (Nicholson, 2014), which make the court often subject to the influence of the executive In addition, because the Vietnamese state apparatus is not structured following the principle of separation of powers between the legislative, executive, and judiciary, local administrative courts tend to defend state agencies and public officials because they are considered ‘their own side’ (Quang Nguyen, 2004)

In the context of the Covid-19 pandemic, citizens’ ability to seek remedies for the government’s violations of human rights in Vietnam is even more limited because in human rights cases, the courts usually stand on the side of the government Because Vietnam's legal framework on emergencies is

17 This principle means derogation must be applied in a non-discriminatory manner, without a distinction solely founded

on grounds of race, colour, sex, language, religion or social origin: UN Commission on Human Rights, 1984

not still clear (as explained above), the court can find grounds to side with the government with relative ease

Preventing the Misuse of Emergency Powers in Vietnam: Prospects and

Challenges

Prospects

To prevent the misuse of emergency powers, as has occurred in the government of Vietnam’s response

to the Covid-19 pandemic, there is a need to revise the provisions on the declaration of a state of emergency, derogation of human rights in an emergency, and constitutional review in the 2013 Constitution and related regulations such as: Ordinance 2000; the Law on Prevention and Control

of Infectious Diseases; the Law on Natural Disaster Prevention and Control; the Law on National Defence; and the Law on National Security

In terms of the power to declare a state of emergency, some authors propose amendment of arts

70, 74, and 88 of the 2013 Constitution to allow the Vietnamese government to promptly respond to

a pandemic in one of two ways The first is by stipulating that the Prime Minister request the State President to declare a state of emergency, and the Standing Committee and the National Assembly have powers to oversee it (Anh and Thuỷ, 2020; Dung and Dương, 2020) The second alternative is

by providing that the Prime Minister has the right to declare a state of emergency, while the State President, the Standing Committee, and the National Assembly have the right to oversee (Minh, 2020) In both options, the monitoring subjects can halt the emergency measures that the government is taking if the measures are contrary to other provisions of the Constitution, especially those on the derogation of human rights Such an amendment would allow the government to act quickly to deal with the emergency situation, while the State President, the Standing Committee, and the National Assembly could protect the constitution from the violation by the government

Relating to the issue of derogation of human rights in an emergency, many authors suggest

amending art 14.2 of the 2013 Constitution to concretise the reasons for the emergency declaration

of ‘national defence, national security, social order and safety, social morality and community well-being’ (Quang, 2018) In addition, other experts campaign for the addition of provisions on absolute rights and concretisation of the principles of proportionality and non-discrimination when derogating human rights in art 14.2 of the 2013 Constitution, in order to prevent misunderstanding and the abuse of art 14.2 purely for state management (Tuấn, 2015) There are also proposals to amend relevant laws instead of revising art 14.2 of the 2013 Constitution (Thịnh, 2017)

In relation to the issue of constitutional review, art 119.2 of the 2013 Constitution opens the door

to deal with the limitations of the current socialist regime for constitutionality review in Vietnam by stipulating: ‘The mechanism to defend the Constitution shall be prescribed by a law’ Most Vietnamese legal scholars propose passing a separate law or amending existing ones, such as the Law on Organisation of the National Assembly or the Law on Organisation of the People's Courts, in order to set up a new constitutional review mechanism for Vietnam focused on two models: the European-model constitutional court (Hảo, 2013) and the French-model constitutional council (Báu, 2016)

Some may argue that these revisions or reforms are meaningless because in Vietnam’s single political party regime, all constitutional institutions, including the legislature, the executive, and the judiciary, are controlled by the Communist Party, and the Communist Party has engaged in all functions of the state, weakening any institutional checks-and-balances However, according to art

4 of the current 2013 Constitution of Vietnam, even if the Communist Party is the leading force of the State and society, the Party’s organisations and members must still operate within the framework of the Constitution and the law Further, the Communist Party of Vietnam theoretically leads the State in two ways: first, developing strategies for the development of the country, which the state is to concretise and implement through laws; and, second, appointing party members to be leaders of state agencies (Nam, 2019) As a result, a mutual control mechanism between the legislative, executive, and judicial bodies has been officially constitutionalised (in art 2 of the 2013

Constitution) Although this mechanism is, in some ways, symbolic and lacking in substance, for at least the past two decades the National Assembly of Vietnam has played an increasingly active role

in overseeing the performance of the government, especially by questioning members of Cabinet, including the Prime Minister, in parliamentary sessions (Schuler, 2021)

Challenges

While the reform of provisions on emergency powers in Vietnam’s 2013 Constitution and related legal instruments is essential for democratic governance in a state of emergency, the State of Vietnam has neither shown interest in it, nor is it ready for it This is mainly because Vietnam still follows the socialist political system In other words, the current political system of Vietnam is the biggest challenge for any attempt to democratise the current mechanism to control power in general, and power in a state of emergency in particular It should also be seen that, in the context of the current one-party political system in Vietnam, any reforms to establish a more effective mechanism for power control are likely to be only half-hearted and of limited effectiveness because the Communist Party can intervene in that mechanism whenever it deems it necessary

However, reform of power control mechanisms is still possible in Vietnam and is, in fact, encouraged by the Communist Party because it understands that a good power control mechanism (as long as it does not challenge the sole leadership of the Party) will help curb corruption in the state apparatus, thereby enhancing the Party's legitimacy and reputation in the society Similarly, pointing out the misuse of emergency powers, and proposing solutions to prevent it in future, might

be seen as an acceptable critism by Communist Party of Vietnam

As to related legal instruments, Vietnam should replace Ordinance 2000 because it is contrary

to art 14.2 of the 2013 Constitution (the Ordinance is not a law but nonetheless allows for derogation

of human rights).18 In March 2020, shortly after the outbreak of Covid-19 pandemic, then Prime Minister Nguyen Xuan Phuc assigned the Ministry of Justice to draft a law on states of emergency

in order to replace Ordinance 2000 (An, 2020) However, such a law did not appear in the list of drafts submitted to the National Assembly for adoption or amendment in 202019 and 2021,20 nor did the Law on Infectious Diseases 2007, the Law on National Security 2004, or the Law on National Defence 2018.21 Although the Law on Natural Disaster Prevention and Control 2013 was revised on

17 June 2020,22 the amendments were not related to declaring a state of emergency or derogating human rights

On the issue of constitutional reform, the possibility of initiating an amendment to the provisions

on emergency powers in the 2013 Constitution of Vietnam is unlikely in the short term Although Vietnam applies a ‘soft’ constitution model under which the amending procedures are not complicated,23 constitutional amendment often requires institutional transformation Since 1946,

18 In Vietnam, Ordinances are adopted by the Standing Committee of National Assembly; therefore, this instrument does not have the same jurisdiction as a Law adopted by National Assembly

19 See: Chương trình xây dựng luật, pháp lệnh năm 2020 [Programme on Drafting Law and Ordinance 2020], according to Decision No 842/QĐ-TTg adopted by Prime Minister on 8 July 2019 <https://tulieuvankien.dangcongsan.vn/Uploads/

2019/7/7/16/QD-842.signed.pdf>

20 See: Chương trình xây dựng luật, pháp lệnh năm 2021 [Programme on Drafting Law and Ordinance 2021], according to

Decision No 842/QĐ-TTg adopted by Prime Minister on 8 July 2019

<http://vanban.chinhphu.vn/portal/page/portal/chinhphu/hethongvanban?class_id=2&_page=1&mode=detail&documen t_id=200503>

21 In 2018, the National Assembly drafted a Law on National Defence and there was a suggestion that states of emergency relating to national defence should be included However, some Delegates—including representatives of National Assembly’s Council for National Defence and Security—argued against it, on the ground that neither the 2013 Constitution nor the Law on States of Emergency deal with it See Thnh, Đoàn, 2017 See: Vietnam: Chương trình […],

2020 and 2021.

22 See: Law on amending some provisions of Law on National Prevention and Control, and Law on Dike Management Law

No 60/2020/QH14, dated 17 June 2020 < https://thuvienphapluat.vn/van-ban/Tai-nguyen-Moi-truong/Luat-Phong-chong-thien-tai-Luat-De-dieu-sua-doi-2020-so-60-2020-QH14-373522.aspx>

23 On Constitution’s amendment models, see Brandt et al (2011)