Contradiction between openness, transparency, accountability and confidentiality of information in vietnamese law

CONTRAD CT ON BETWEEN OPENNESS, TRANSPARENC , ACCOUNTAB L T AND CONF DENT AL T OF NFORMAT ON N V ETNAMESE LAW LLM Nguyen huong Vyl Int oductions Publicity, t anspa ency, and accountability act as basic and essential elements of the mode n gove nance m odel These te ms ca y the minds ofits c eato s ith the goal of establishing and maintaining an open, t anspa ent info mation system This is also consistent ith the inevitable t end of the cu ent indust ial evolution In ecent yea s, tens of thousands of Vietnamese business have sta ted and built thei business models th ough the basics of connectivity and sha ing Connection and sha ing also becom the basic keythat the p ivate secto ca es about and expect most f om the political system, especially the gove nment, minist ies, b anches, and management levels f om cent al to local levels, openness, t anspa ency, and accountability a e the key tools to suppo t connection and sha ing in the m odem state m odel Connection and sha ing he e a e conc etized by solutions that cont ibute to the cla ification and smoothness of info mation and data among state agencies as ell as bet een state agencies, people, and ente p ises Ho eve , the fact that info mation is easily accessible and sp eading, has had many consequences The e a of technology and digitalization seems to have made info mation secu ity mo e f agile than eve The info mation of an individual o a legal entity leaking out can lead to unfo eseen physical and mental damage A cont adiction a ises bet een the theo y of connection-sha ing and the existence of seemingly undisclosed types of info mation The question is hethe o not the e is a conflict of la s bet een openness, t anspa ency and accountability, and the ight of Institute o f trategy and cience inspectorate, 47 overnment Inspectorate PROCEEDINGS OF THE INTERNATIONAL WORKSHOP Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce info mation confidentiality, specifically in the cu ent context of Vietnam? This a ticle cont ibutes to ans e ing that question of Legal bas s o f d sclosure, tra spare cy, accou tab l ty a d co f de t al ty format o International legal basis a) Disclosure, transparency and accountability The issue of disclosu e and t anspa ency has been mentioned since ancient Roman times, but the method and pu pose ofusing these tools e e quite diffe ent f om no adays Roman institutions of gove nance conducted a civil society investigation, hich as maintained and a anged acco ding to the economic and political hie a chy and the numbe of t oops held by membe s of society Consciousness about the investigation and captu e of social info mation as evived in the Renaissance, as mentioned in the “Six Books of the Republic” This activity as aimed to cont ol the activities and customa y la insociety and the su plus of the ealth of the nobility, and at the same time, fight co uption on the basis of t anspa ency in gove nance activities The thought of app oaching and using the elements of openness and t anspa ency at that time is ve y inte esting It can be oughly unde stood that the ancient state used these tools to captu e clea ly and mo e tho oughly hat happened in society and cont olled society to se ve gove nance activities Ho eve , it also has a t o-fold meaning because t anspa ency of info mation about the people and society ill also cont ibute to monito ing the activities of state officials themselves This logic is o th ponde ing, because it seems that the te m openness, t anspa ency and accountability no tend to efe to the state management agency Section of the a ticle ill etu n to the question of hethe the e is a esponsibility to a ds openness, t anspa ency and accountability fo the p ivate secto sub ects In 776, S eden established a membe of the Pa liamenta y office of the local udicial and administ ative cont ol committee (Ombudspe son), the eby tu ning ove and developing the concept of openness in the di ection of the State to the people A statute as enacted that stipulates the ight of people to have access to documents held by administ ative agencies Be n, D Gouve ne sans gouve ne une a chéologie politique de la statistique, Pa is, P esses unive sitai es de F ance (200 ) 47 PROCEEDINGS OF THE INTERNATIONAL WORKSHOP Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce.,. _ The F ench Revolution, afte its success in , int oduced the “Official Gazette” egime, he eby all la s, dec ees o egulations of the State as a hole had to be made public to the people based on the ule “no one is excluded f om the la ” The Official Gazette egime has been maintained and enfo ced until this day fo all legal documents as ell as legal t ansactions The evolutiona y state also ensu es the public disclosu e of debates among Councils of the State The La on openness, T anspa ency, and Accountability as taken to a ne level in the 20th centu y In the USA, the F eedom of Info mation Act of 66 as ecognized as one of the fi st legal documents elated to t anspa ency of documents and administ ative documents issued unde P esident Lyndon B Johnson This la as d afted in the context of a time hen u s autho ities e e unde a lot of p essu e f om people asking fo info mation Ame icans at that time had a g eat need fo accessing documents elated to issues that the u s Gove nment as dealing ith, including info mation about the Vietnam Wa The inhibition of access to info mation accumulated afte the long pe iod of time, and thus “blind info mation” led to consequences so that not oniy no mal state gove nance activities but also public policies on fo eign affai s became topics about hich people began equi ing disclosu e and t anspa ency In mode n time, disclosu e, t anspa ency and accountability a e issues being mentioned a lot in the la of nations In pa ticula , in some count ies, disclosu e, t anspa ency and accountability have been elevated to become a sepa ate la F om a domestic la pe spective, the UK has the T anspa ency La of local gove nment in 20 2The main contents of this la include: Info mation to be disclosed, Info mation ecommended fo publication, a summa y of all info mation to be published, F aud detection and p evention and the publishing of Social Housing P ope ty Data Fo S eden, openness and t anspa ency a e impo tant foundations in the count y’s democ atic society The e a e fou basic la s establishing the S edish Constitution: the Inst ument of Gove nment, the F eedom of the P ess Act, the Basic La of F eedom of Exp ession (the Fundamental) La on F eedom of Exp ession, and the Act of Succession These la s a e second only to the Constitution, and they take Alexand e Pi aux, he double role o f transparency in administration (La double natu e de la t anspa ence dans I’administ ation), CRAIG (Cente đe Reche che en Action publique, Intég ation et Gouve nance) (20 5) 2T anspa ency La of local autho ities (20 5) S eden se, ‘openness SHAPES SWEDISH SOCIET ’ ( weden verige, June 28, 20 8) < https://s eden se/ society/openness-shapes-s edish-society/?fbclid-I ARl RA2dCeST 7fsJ Xu ucBZBsAFP iVdc5bW OIkl7 4e gs po >Access Updated on Septembe 6,20 PROCEEDINGS OF THE INTERNATIONA! WORKSHOP Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce p ecedence ove othe legal documents in S eden These la s a e often found ve y ea ly in Eu opean count ies, he e equality, openness and accountability a e enfo ced to a ds a t anspa ent gove nment Openness and t anspa ency a e mentioned a lot in the UN Convention against Co uption such as publicizing p ocu ement p ocedu es and p ope ty p ocu ement cont acts; publicizing financial statements and accounting standa ds, auditing; publicizing banking, financial, comme cial o confiscated eco ds; publicizing copies ofgove nment eco ds, documents o info mation, etc Fu the mo e, it equi es t anspa ency in the public secto ; t anspa ency in allo ing candidates to ente public offices as eli as funding political pa ties; t anspa ency and p evention of conflicts of inte est; t anspa ency in public finance management esponsibilities; t anspa ency in accounting eco ds,vouche s, financialstatementso othe documents elatedto evenue and expenditu e, and p evention of the fo ging of these documents; t anspa ency bet een p ivate o ganizations; t anspa ency in decision-making p ocesses, etc This confi ms that the inte national community has also ecognized the meaning of openness and t anspa ency in ensu ing the social supe vision of the exe cising of public po e 2The above UN Convention also p ovides the public - as app op iate info mation on the o ganization, the p ocess of implementation, and decision making of thei count ies, as ell as info mation aboutdecisions and legal acts elated tồ the public Cu ently, the La on the F eedom of Info mation is enacted in 82 count ies and te ito ies a ound the o ld b) Right to confidentiality of information Despite existing fo a long time, the inte national conventions and la s of some count ies mainly stipulate on p ivacy, ith only a fe egulations on p ivacy and confidentiality of info mation In gene al te ms, p ivacy is the ight to p otect the life of individuals ithout the access o disclosu e of info mation by othe individuals and o ganizations The basic content of p ivacy includes p ivacy of United Nations Convention against Co uption (2003) 2Nguyen Tuan Khanh, ‘Openness and t anspa ency in the public secto in ou count y today* in the Wo kshop Document on legal issues in anti-co uption in Vietnam today (20 ), p 73 3United Nations Convention against Co uption (2003) A ticle 0, point (a) Wikipedia, ‘F eedom of info mation la s by count y’ < https://en ildpedla o g/ iki/F eedom_ of_ in fo m atio n mia s_by_count y?fbclid=I AR 2gG 3M xkN p7zG G 7bR M L6d5PKttm „U qPW dE FhFOea8 GOV7FvVJoAbAl U > accessed Septembe 6,20 47 PROCEEDINGS OF THE INTERNATIONAL WORKSHOP Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce pe sonal info mation, body, contact info mation, and esidence Rega ding the ight to info mation confidentiality, the e has been no conceptual text, but in te ms of the visible semantics, the content of p ivacy is b oade than the content of the ight to info mation confidentiality The efo e, e can exploit the p ivacy egulations in some inte national conventions Inte national conventions on civil and political ights take effect on the te ito y of Vietnam The efo e, eve y individual is p otected by the State of Vietnam ith ega ds to thei p ivacy in pe sonal life, family, esidence, and co espondence, specifically: The Unive sal Decla ation of Human Rights 48 (UDHR), A ticle notes: “No one is sub ect to a bit a y inte fe ence ith p ivate life, family, esidence o co espondence, no can thei hono o pe sonal p estige be insulted; eve yone has the ight to be p otected by against such inte fe ence and inf ingement” Inte national Covenant on Civil and Political Rights (ICCPR), A ticle states that: “No one is a bit a ily o illegally inte fe ed ith in p ivate life, family, housing, co espondence, no can the e be an illegal inf ingement of thei hono and p estige Eve yonehas the ightto the p otection ofsuch inte fe ence o inf ingementbyla F om the above p ovisions, it can be infe ed that the info mation confidentiality p otected by t o inte national la documents above, is the sec ets of pe sonal and familial info mation, esidence and o kplace, and inte -info mation; hich a e p otected f om all inte ventions such as collecting and dist ibuting; monito ing and inf inging on esidential and o king places; int uding, cont olling, tampe ing in communications, etc 2 Domestic legal basis a) Disclosure, transparency and accountability Due to specific facto s f om histo ical ci cumstances, the te ms disclosu e, t anspa ency and accountability appea elatively late in Vietnam The most common notion of people's ight to info mation as fi st ecognized in A ticle of the Constitution, unde hich “citizens have the ight to f eedom of speech and f eedom of the p ess; have the ight to info mation in acco dance ith the la ” In the 20 Constitution, this ight as enamed to “ ight to access to info mation” (A ticle 25) Duong Gia La , ‘Regulations on the ight to p ivacy in p ivate legal documents’ < https://luatduonggia vn/ quy'dinh-ve-quyen-bi-mat-doi-tu-t ong-cac-van-ban-quy-pham-phap-luat/?fbclid=I AR05 RDnH7SLndnqhMsB3NTARuvS0-RNyPvVAc- lxDVGPW uGS HMVnc > accessed Septembe ,20 474 PROCEEDINGS OF THE INTERNATIONAL WORKSHOP Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce In conc etizing the p ovisions of the Vietnamese C onstitution, implementing the Communist Pa ty’s policies, and at the same time inte nalizing a numbe of p ovisions of inte national t eaties to hich Vietnam is a membe , many legal documents have been issued that contain egulations on the ight to info mation and esponsibilities of state agencies in the p ovision of the info m ation held by state agencies (envi onmental info m ation, planning info mation, const uction, land, p o ects, hygiene, food safety, budget spending, etc ) Such documents include: the P ess La of (amended and supplemented in ); Dec ee No / 8/ND-CP o f May , and Dec ee /2003/ND-CP of July 2003 of the Gove nment p omulgating the Regulation on the exe cise of democ acy in communes; the O dinance on the exe cise of democ acy in communes and a ds and to ns in 2007; Decision No /2003/QD-TTg o f Septembe 2003 of the P ime Ministe , p omulgating the Regulation on im plementation o f the “one-doo ” mechanism at the local state administ ative agencies; the La on P omulgation of No mative Documents in 20 5; La on Publication 20 2; La on Auditing 20 5; La against C o uption 20 8; La on Th ift P actice and Waste Combat in 20 3, La on Housing in 20 4, etc, Late issued egulations on openness, t anspa ency and p ovision o f info mation by state agencies in legal documents a e clea e and mo e specific than p evious ones The most p om inent stage in implementing info m ation ights into the institutional system as the passing of the La on Access to Info mation No 04/20 6/Q H on Ap il 20 hich came into effect on July 20 The La contains chapte s and 37 a ticles Acco ding to it, all citizens a e equal and the e ill be no disc im ination hen it comes to access to info mation At the same time, the La also lists types of info mation that a e publicly accessible and the types of info m ation that a e not accessible (meaning that it cannot be made public) In addition, Dec ee NO 3/20 8/ND-CP p ovides detailed egulations and measu es to im plem ent the La on Access to Info mation; Ci cula NO 46/20 8/TT-BTC detailing actual expenses fo p inting, copying, photocopying and sending info m ation specified in Clause 2, A ticle of the La on Info m ation Access; Ci cula No 64/20 8/TT-BQP Stipulating the p ovision of info m ation in the Minist y of Defense, Ci cula No 02/20 / TT-BNV stipulating the standa ds of input data and equi ements fo sto age of a chives On Janua y 24, 20 , the egulations on p ese ving the database of a chives, etc also mentioned a lot about info mation secu ity and esponsibilities of info mation manage s 475 PROCEEDINGS OF THE INTERNATIONAL WORKSHOP Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce _ In summa y, the cu ent la s of Vietnam have been establishing the basis of a ce tain legal system elated to openness, t anspa ency and accountability of agencies, o ganizations and state units The issue to conside is ho these tools a e being implemented in eal life b) Right to confidentiality o f information In the cu ent legal system of Vietnam, the e is no te m “ ight to info mation confidentiality’’ Ho eve , in the aspect of pe sonal info mation, the p ivacy and the p ivate sec et of each pe son is p otected by la , making it inviolable The Constitution stipulates that citizens have the ight to inviolability of accommodation; mails, telephones, teleg ams a e ensu ed to be safe and confidential; access to and use of these modes of t ansmission of info mation as ell as the sea ch of othe people’s esidence must be conducted in acco dance ith the la Thus> in te ms of p ivacy, the Constitution only stipulates the ight of safety and confidentiality of mails, telephones, teleg ams, but not the ight to pe sonal info mation Ove coming these est ictions, A ticle of the 20 Constitution stipulates: “Eve yone has the ight to inviolability of p ivate life, pe sonal sec ets and family sec ets; have the ight to defend the hono and p estige ” In addition, this stipulates that familial confidential info mation is p otected by ia and affi ms that eve yone has the ight to the inviolability of familial sec ets Afte the Constitution, the ight to confidentiality is mentioned in the Civil La , hich is attached to the concept of a mo e b oad sense than the ight to pe sonal sec et The eme gence of this concept is an impo tant highlight, eflecting the vie point and level of Vietnamese legislatu e in the mode n pe iod Acco dingly, human facto s, human ights as featu ed th ough implementation assu ance tools, eflecting the co e natu e of the ule-of-la state of the people, by the people and fo the people A ticle 38 of the 20 Civil La stipulates the ight to p ivate life, pe sonal sec ets, and family sec ets This can be conside ed as a esult of the p ocess of codifying the human ights elements stipulated in inte national conventions in combination ith civil ights p ovisions in the basic la s in Vietnam P ivate info mation of individuals becomes an institution p otected by p ivate la not only ithin the te ito y of the count y, but also in the case of a stay (even if no esidence is equi ed) at othe count ies In the e a of the digital technology boom, the ight to info mation confidentiality is not only confined to a count y but also a global issue 47 PROCEEDINGS OF THE INTERNATIONAL WORKSHOP Ope ess>Tra spare cy a d Accou tab l ty State Gover a ce The ight to confidential pe sonal info mation is also mentioned in anothe impo tant legal document, hich is the P ess La Clause 3, 4, A ticle of Dec ee /2002/Dec ee-Gove nment stipulates: “Do not post o b oadcast pictu es of an individual ithout explicit captions o affect the eputation and hono of that individual ” The P ess La 20 also stipulates one of the p ohibited behavio s is: “disclosing info mation on the list of State sec ets, p ivate p ivacy of individuals and othe sec ets as p esc ibed by la ’’ The 2005 Anti-co uption La stipulates the t anspa ency ofp ope ty obligations of civil se vants and those ho must decla e thei s in acco dance ith the la , it also emphasizes the ight to “ensu e the confidentiality of the contents o f asset and income decla ation in acco dance ith la ” (A ticle Anti-co uption La 2005) In addition to the afo ementioned documents, the ight to p ivacy a e also mentioned in a numbe of othe specialized legal documents such as the Publication La , the La on the P otection of People’s Health, the Code o f Civil P ocedu e and the Code of C iminal P ocedu e, the Tax Administ ation La , La on p evention and cont ol of vi uses that cause human immunodeficiency synd ome (HIV/AIDS), La on Denunciations, La on Info mation Technology, La on Info mation Secu ity, La on Elect onic t ansactions, etc Ali of them c eate a legal basis to ensu e the p ivacy of individuals pract ce 2.1 D sclosure, tra spare cy, accou tab l ty a d V et am format o co f de t al ty T e co fl ct betwee d sclosure, tra spare cy, accou tab l ty a d t e r to pr vacy a d co f de t al ty o fperso al format o t e law o f V et am The goal of disclosu e, t anspa ency and accountability is to ensu e that info mation is no longe in the da k, hile the la p otecting p ivate p ivacy defines the natu e of non-disclosu e, disclosu e and decla ation of these types of info mation The e a e many types of info mation in the la that belong to the catego y of pe sonal sec ets p otected by the State, such as mails, teleg ams and telephone calls, familial sec ets, sec ets of p ivate life, etc Among them, the most sensitive issue hich can come into conflict ith egulations of t anspa ency, disclosu e and explanation is the sec et of p ope ty info mation 477 t PROCEEDINGS OF THE INTERNATIONAL WORKSHOP Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce Although the la s of Vietnam and those of many count ies a ound the o ld not di ectly stipulate that p ope ty info mation is classified as an individual's sec et, in eality, ho eve , it p oves to be one of the most im po tant types of info mation that people not ant to disclose If a financial expe t e e asked about the sec et of ealth, they ould ans e : The e is no sec et; ealth is the esult of o king d and saving eve y penny This statement is in cont adiction ith hat e might conside as expected, o the no m, namely that if you have a lot of money, you ill spend a lot, as ell Ho eve , this does not seem to be the case in eality - manyich people in the o ld today have a simple life and even live f ugally It seems idiculous that people ith lots of money don’t like to spend money Ho eve , this can be having many easons: in pa t, fo one, hen you have a huge fo tune, the value that you a e inte ested in, is no longe limited to the mate ial Anothe mo e im po tant eason is that most people not ant othe s to kno ho much money they have o ho much p ope ty they o n This a gument becomes mo e pe suasive fo those hose appa ent ealth society does not believe to be ep esentative of thei actual ealth In Vietnam, no one doubts the legacy of Bill Gates, Wa en Buffet o mo e ecently* the o ne of Ving oup, Pham Nhat Vuong But many people question the ealth of a civil se vant o a community official in thei a ea P ope ty of state officials and employees is the fi st point of the conflict of la s: t anspa ency o p otection of p ope ty confidentiality? P ope ty t anspa ency of officials and public se vants has been a conce n of society ecently Human society today is dominated by digital technology, in hich the speed and scale of info mation sometimes sp ead beyond the capacity of human cont ol Even if the la of Vietnam did not stipulate t anspa ency of assets and income that is mandato y fo officials and public se vants* the people, to some extent, in diffe ent ays, can “hunt* and “ udge” ho ich an official A o B is Fo example, public opinion once sti ed up ith the sto y of a numbe of leade s and fo me leade s o ning a ealth of assets such as the 22-yea -old Deputy Gove no of the State Bank, ho o ned a p ivate palace in Ho Chi Minh City hich is a fe thousand squa e mete s o the daughte of the Vice Ministe , ho is unde 30 yea s old and also o ns a fo tune of mo e than VNĐ 200 billion Because of a lack of disclosu e and t anspa ency, society often implies and speculates that these assets come f om Chau An, ‘The official ho o ns the “te ible” p ope ty: Whe e the MPA ask f om? < https://baodatviet vn/ chinh-t i-xa-hoi/tin-tuc-thoi-su/con-quati'Chuc-so-huu-tai-san-khung-dbqh-hoi-tu-dau-3346053/> accessed Septembe 22, 20 47 PROCEEDINGS OF THE INTERNATIONAL WORKSHOP Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce nefa ious sou ces The efo e, even ithout elevant legal p ovisions, keeping p ivate p ope ty confidential has not been easy In this context, the State seems to have “made it mo e difficult” fo employees in thei offices and the appa atus Acco ding to the Anti-co uption La of 20 8, the follo ing entities a e obliged to decla e assets and income: - Officials; - People's Public Secu ity Office ; People’s A my office s and p ofessional soldie s; - Pe sons holding positions of Deputy Manage , o equivalent o highe , ho o k in public non-business units, state ente p ises; pe sons appointed to ep esent the state capital po tions in ente p ises; - National Assembly candidates, People’s Council candidates; Befo e the p omulgation of the Anti-co uption La of 20 8, the evie of yea s of implementing the Anti-co uption La of 2005 sho ed that the decla ation o f assets and incomes of civil se vants is not eally effective The decla ations a e still fo mal and have not helped the autho ities to cont ol changes in the assets of the decla ants In 85 cases of decla ation ove yea s (200620 6), the Gove nment detected and dealt ith only dishonest decla ants; in 20 7, 78 cases e e ve ified, handling violato s and in the fi st months of 20 8, 44 cases e e ve ified, people e e found to be in violation of asset and income decla ation la openness and t anspa ency of assets and incomes o f cad es and civil se vants a e im po tant tools cont ibuting to st engthening the integ ity of the state appa atus and inc easing the ability to m onito and p event illegal en ichment activities Ho eve , the ineffective implementation of this activity in Vietnam can be explained in pa t by this tool conflicting ith the ight to p ivacy of pe sonal info mation, even inf inging upon the p ivacy of the p ope ty o ne At this point, it seems that the La on Anti-co uption has conflicted ith civil la , even the la on human ights That is because, afte all, cad es, civil se vants o people ho a e obliged to makedecla ations unde the La on Anti-co uption also have the status of individuals in society, and the efo e they a e fuily entitled to the ight to be espected by othe s and be p otected by la 1Gove nment Repo t No 46 / BC-CP o fOctobe 8,20 on Anti-co uption activities in 20 and Gove nment Repo t No 354 / BC-CP of August 30,20 on Anti-co uption activities in 20 47 PROCEEDINGS OF THE INTERNATIONAL WORKSHOP Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce As analyzed above, people basically not ant to sho thei ealth and mate ial possessions, especially hen thei ealth is la ge In a count y influenced by “ et ice” civilization, the natu e ofthe village community has been a cha acte istic in Vietnamese national histo y, exp essed th ough the adage: “Bad ne s has ings” hich has been ecognized and conside ed as a common thing in eal life Ho eve , the openness, c osscultu al and inevitable consequences of the pe iod of inte national integ ation and globalization have significantly changed the minds of Vietnamese people P ivacy, especially on p ope ty info mation, is inc easingly becoming a conce n and is being enhanced in today's society It is a fact that in many cases, the eason fo a ealthy civil se vant is not dubious Additional volatile assets may come f om ve y no mal places Fo example, ealth and p ope ty donated o left behind by othe s (pa ents, g andpa ents) (especially land, eal estate); o in the family, the husband o ife of the civil se vant has one o mo e sepa ate business activities, and so on P oving t anspa ency of assets and income in these cases may not be too difficult What is discussed he e is that the Anti-co uption La of 20 stipulates that the decla ation of income must be made public at the o kplace That means eve yone in these agencies, o ganizations o units can kno the inc ease in assets of that civil se vant Jealousy and envy a e inhe ently a bad habit of Vietnamese some people It is this natu e hich makes some people in the community and in society in gene al, to g adually lose thei faith in each othe Thus, they a e al ays doubtful and a y and no longe da e to tell the t uth and to live t ue ith each othe ust because they a e af aid of being ealous and envious In this context, the fact that cad es and civil se vants ho "suddenly get ich” a e be obliged to fully decla e thei assets to the enti e agency they o k in eallyputs that pe son in a dilemma Ih e ight to p ivacy, he e in the field of p ope ty, hich has al ays been ecognized as a legal and legitimate ight p otected by la , cont adicts ith the esponsibility of openness, t anspa ency and accountability of gove nment officials, civil se vants and othe obliged sub ects as stipulated by the Anti-co uption La 2.2 T e co fl ct betwee d sclosure, tra spare cy, accou tab l ty a d co f de t al ty of state format o t e law o f V et am In addition to the confidentiality ofpe sonal info mation, openness, t anspa ency Nguyen Ih i Bich Nga, ‘The envy and envy of Vietnamese people’ Ret ieved Septembe 22» 20Ỉ 48 PROCEEDINGS OF THE INTERNATIONAL WORKSHOP _ Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce and accountability, the e is a conflict ith anothe content in the cu ent legal system: the state sec et Hie pu pose of the above-mentioned tools in administ ative management is to allo people to kno and unde stand hat the State’s duties and functions a e, the eby assessing and cont olling the constitutionality, legality and ationality of the activities of state agencies at both cent al and local levels In the society of ou count y today, people expect mo e and mo e f om the State the pe spective of p oviding administ ative se vices (public se vices) In this ega d, custome satisfaction (i e, the satisfaction ofthe people) depends p ima ily on the level ofdisclosu e and t anspa ency in the ope ations of se vice p ovide s In the context that the State is constantly p omoting the imp ovement of the quality of public administ ative se vices, Vietnamese la make s not fo get to set ce tain ba ie s ight f om the institutional level The La on P otection of State Sec ets No /20 8/Cong essl4> hich ill take effect f om July 2020, is an example A ticle of this La conveys hat many people a e most inte ested in, hich is the “state sec et a ea” Ho eve , the contents exp essed in this a ticle seem to conflict significantly ith the state policy of p omoting openness, t anspa ency and accountability in its st ategies and actions The info mation items listed constitute a la ge num be and hat needs much mo e attention is that the content should be t anspa ent to the public Fo example, Info mation on the economy, Info mation on the indust y, t ade, ag icultu e and u al development; Info mation on the p ocess of fo mulating national planning, egional planning, p ovincial planning, planning of special administ ative-economic units, u ban planning, u al planning; Info mation on esou ces and the envi onment including ate esou ces, envi onment, geology, mine als, meteo ology, land, sea, islands, measu ements and maps; Info mation on inspection, examination, supe vision, handling of violations, settlement of complaints, denunciations and p evention and combat o f co uption; ect In the autho ’s vie , state sec ets a e an inevitable matte La in any count y also egulates state sec ets App oaching and solving this p oblem ho eve can be done in the follo ing ays: Firstlyi the la lists and clea ly stipulates the contents of the catego y of state sec ets This ay of egulation implies, then, that info mation not included in the above list can be made public, t anspa ent and accountable to the people; 48 PROCEEDINGS OF THE INTERNATIONAL WORKSHOP ope essy Tra spare cy a d Accou tab l ty State Gover a ce _ econdly, in the opposite di ection, the la lists the types of info mation and content that the State advocates the p ovision the eof and is illing to p ovide it in a public, t anspa ent, and accountable ay, allo ing people to look up, access, and use said info mation Ihis ay of egulation implies, then, that info mation not included in the above list ill be completely in the catego y of state sec ets Cu ently, Vietnamese la is follo ing the fi st app oach Because the La on P otection of State Sec ets has not yet officially taken effect, this issue is still open Ho eve , the conflict bet een openness, t anspa ency, accountability and confidentiality of state info mation in the la s of Vietnam seems to have a isen at the policy and institution level 2.3 Respo s b l ty o fd sclosure, tra spare cy»a d accou tab l ty o f t e pr vate sector The Communist Pa ty’s guidelines and policies and the cu ent la s of the State of Vietnam only app oach the esponsibility of disclosu e, t anspa ency and accountability in a one- ay di ection: that is, the pe son ith public obligation belongs to the management appa atus hile the pe son ho has the ight to make a public claim is the pe son unde management The question is hethe it can be conside ed to eve se this di ection: should disclosu e, t anspa ency and accountability be applied to the hole p ivate secto ? F om the ente p ise pe spective, it is clea that if this policy is implemented, it ill cause va ious difficulties and substantial p essu e on the Vietnamese business community It also seems to go against anothe di ection being pu sued by the Communist Pa ty and the State, hich is building a tectonic gove nment Rega ding this concept, in the fi st meeting of the Gove nment fo the te m of 20 6-202 , P ime Ministe (the egula meeting of Ap il 20 held on and 5/5/20 6), has mentioned about the di ection and administ ation of the Gove nment, saying it “must change f om the mode of administ ative o de s to that of the Gove nment c eating and se ving; a system hich is dete mined to build a gove nment based on the p inciples of Integ ity, T anspa ency, and Efficiency,” and say no to co uption, negativity, aste “The equi ement fo economic development is to focus on the task of imp oving the business envi onment, c eating favo able conditions fo businesses - the main fo ce esponsible fo the economic development ” This policy has been conc etized by the Gove nment’s st ong effo ts to “untie” businesses, the most impo tant of 482 PROCEEDINGS OF THE INTERNATIONAL WORKSHOP _ Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce hich is educing the bu den of administ ative p ocedu es and business conditions, and applying technological achievements to manage activities and limit inte action bet een ente p ises and egulato y agencies Ho eve , so fa , implementation has been elatively slo , acco ding to the opinion of Assoc P of D T an Dinh Thien: “Innovation is like a co ne stone, so it is most difficult to oll the stone hen you sta t pushing” In this context, it is clea that the State placing esponsibility of open and t anspa ent explanation fo businesses is not in line ith the policy and the t end of Gove nment building in the st centu y Mo eove , confidentiality is impo tant, even vital, fo the business of an ente p ise Ente p ises themselves build thei o n info mation secu ity systems because they a e conce ned that, if exposed, the info mation ill cause unfo eseen damages The efo e, it is dea that the Gove nment st ictly equi ing info mation t anspa ency ill be an un easonable inte vention in co po ate life Fo this eason* the d aft dec ee guiding the implementation of the AntiCo uption La 20 8, d afted initially by the Gove nment Inspecto ate, only deals ith disclosu e and t anspa ency to p event and fight against co uption in mode n co po ate models, c edit institutions and social o ganizations hose establishment is decided by the P ime Ministe , Ministe of Home Affai s o Chai man of a p ovincial Peoples Committee Ho eve , eve ting to the p evious pe iod, du ing the p ocess of examining the Antico uption La 20 8, many opinions aised a hot eality of society no adays hich is co uption in the p ivate secto A esea ch g oup of the Judicial Committee stated that, th ough su veys and assessments of a numbe of domestic and fo eign o ganizations, it as found that the co uption situation in the p ivate secto has been adve sely affecting activities of fai competition, the investment envi onment, economic, financial and t ade elations, as ell as p eventing the effectiveness of antico uption in the public secto , etc The United Nations Convention on Co uption to hich Vietnam is a signato y imposes anti-co uption equi ements on the p ivate secto Ho eve , the esea ch team said that expanding the scope of egulation only fo public ente p ises, c edit institutions and investment funds and some types of social o ganizations is not app op iate P actice sho s that giving o taking b ibes to gain ' Dan T i, ‘Assoc P of D T an Dinh Thien: Ente p ises eally need to “untie” the administ ative p ocedu es’ accessed Septembe 22,20 48 PROCEEDINGS OF THE INTERNATIONAL WORKSHOP Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce advantages in p oduction and business occu s in many diffe ent types of businesses, including limited liability companies o p ivate companies, hich a e “backya d” companies sponso ed by people ith position and po e The above situation aises the question that some he e, the system ofinfo mation catego ized as sec et, the lack of info mation given by businesses and o ganizations, the ongful and illegal acts of officials, public se vants and autho ities still exist In this case, ide-scope and ea ly disclosu e, t anspa ency and accountability ill cont ibute to limiting i egula ities and the timely detection and p evention of acts of co upt officials in the gove nment appa atus As analyzed in Section , the fi st human idea of info mation t anspa ency is exp essed in the di ection the State has taken by collecting info mation about the society and its people fo bette management Bette management he e as even implicitly unde stood by the Roman State in the sense of inte nal cont ol of officials o king ithin its o n appa atus Info mation t anspa ency of the ob ect unde management (society) cont ibutes to bette cont ol of gove nment officials The app oach f om this ancient pe iod is still fully p actical today, hen co uption no longe significantly distinguishes bet een the public and p ivate secto Ho eve , disclosu e, t anspa ency and accountability of the p ivate secto should be implemented ith ext eme ca e, minimizing the bu den and p essu e on genuine businesses hich have been making an impo tant cont ibution to the socio-economic development p ocess of the count y Conclusion The t o concepts analyzed in this a ticle contain cont adictions stemming f om thei ve y natu e: one is “ ights” (to info mation confidentiality) and the othe is " esponsibilities and obligations” (i e openness, t anspa ency, accountability) Rights existing in pa allel ith obligations in the same sub ect is not enti ely st ange in legal science Even if the system of ights and obligations contains elements of conflicts, it is unavoidable The ightto confidentiality ofinfo mation must be espected and p otected because it is a basic human ight But openness, t anspa ency and accountability a e also indispensable equi ements of mode n public administ ation The existence of opposites is a common p oblem in the o ld Ho eve , the o igin and the d iving fo ce of development a e cont adiction and the esolution of int insic cont adiction Van Kien, “Using businesses ‘backya d’ to co uption” accessed Septembe 22,20 484 PROCEEDINGS OF THE INTERNATIONAL WORKSHOP Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce in each thing and the phenomenon itself (mate ial dialectic acco ding to Ma xist Leninist philosophy) The conflict of la discussed in this pape is not intended to p omote o disp ove eithe side Since both te ms, even the conflicts bet een them, a e impo tant and meaningful in legal life Resolving conflicts delicately and logically is an impo tant key pe fo mance indicato that p omotes the legislative and gove ning capacity of the State in pa ticula and political systems in gene al REFERENCES Alexa dre P raux, he double role oftransparency in administration (La double ature de la t anspa ence dans l’administ ation), CRAIG (Cente de Reche che en Action publique, Integ ation et Gouve nance), (20 5) Chau An, ‘The official ho o ns the “te ible” p ope ty: W he e the MPA ask f om? accessed Septembe 22, 20 Be n, D ouverner sans gouverner une archéoỉogie politique de la statistique, Pa is, P esses unive sitai es de F ance (200 ) Repo t No 46 /BC-CP dated Octobe 8, 20 7, of the Gove nment on the fight against co uption in 20 and the Repo t No 354/BC-CP dated August 30, 20 8, of the Gove nment on the fight against co uption in 20 People’s kno ledge, ‘Assoc P of D T an Dinh Thien: Ente p ises eally need to “untie” the administ ative p ocedu es “ accessed Septembe 22, 20 Va e , ‘Us g e terpr ses’backyard ‘to corrupt o ’ < ttp://dut aoo l e quoc o vn/DuThao/Lists/TT_TINLAPPHAP/Vie _Detaii aspx?ItemID=26 8> accessed Septembe 22, 20 Duong Gia La , ‘P ovisions on the p ivacy ofp ivate life in legal documents’ chttps:// luatduonggia vn/quy-dinh-ve-quyen-bi-mat-doi-tu-t ong-cac-van-ban-pham-phapluat/?fbclid=I AR05 RDnH7SLn-dnqhMsB3NTARuvSO-RNyPvVAc-lxDVGPW uGS HMVnc> accessed Septembe ,20 485 PROCEEDINGS OF THE INTERNATIONAL WORKSHOP Ope ess> Tra spare cy a d Accou tab l ty State Gover a ce Hoang Minh, ‘Vu Nhom divest all “backya d”befo e being anted?’ accessed Septembe 22,20 Nguyen Ihi Bich Nga, ‘The envy and envy of Vietnamese people’ accessed Septembe 22,20 S eden se, openness SHAPES SWEDISH SOCIET ( weden verige, June 28,20 8) accessed Septembe 22,20 Wikipedia, ‘F eedom of info mation la s by count y’ accessed Septembe 6,20 48 PUBL C PART C PAT ON N T E F G T AGA NST POL C CORRUPT ON: FROM T E PERSPECT VE OF OPENNESS, TRANSPARENC AND ACCOUNTAB L T Dr P am T e Luc1- A/Prof Dr Da rt Tua Public pa ticipation in gove nance is one of the equi ements o f good gove nance and it plays an impo tant ole in p eventing and combating policy co uption This pape cla ifies the issue of policy co uption and the ole of public pa ticipation in anti-co uption f om the pe spective of disclosu e, t anspa ency and accountability Public pa ticipation in policy-making is ecognized and specified in the Constitution and la s In p actice, the people also play an inc easingly active ole in combating policy co uption Ho eve , the e a e still many sho tcomings of this activity By studying the theo ies and situation of policy co uption based on the fo mula of policy co uption “Corruption = Monopoly + ecrecy - Accountability” the pape p oposes some solutions to inc ease public* pa ticipation in anti-co uption Pol cy corrupt o a d t e role o f publ c part c pat o policy corruption t e f g t aga st Co uption is an act of abusing po e , especially state po e , fo pe sonal pu poses Acco ding to such definition, co uption has existed fo a long time in the political life Co uption has still been popula all ove the o ld, becoming one of the main ba ie s to the development of any count y, th eatening the social stability, uining the mo al and democ atic values of society, inte cepting the development and imp ovement of the economy and damaging the people's t ust in the State and la Ho Chi Minh olitical Academy chool o f Law, Vietnam National University, Hanoi 48 PROCEEDINGS OF THE INTERNATIONAL WORKSHOP Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce Among all types of co uption, policy co uption is ecognized as being sophisticated- haza dous, and difficult to identify and esolve It is defined as an act of using po e illegally du ing the policy-making p ocess in o de to take advantages of the policy In fact, policy co uption has been conducted th ough va ious types of act, such as policy “t ading” “bending” and “navigating” to maximize the advantages of pa ticula individuals o g oups instead of gene al inte ests of the community o society In detail, it is the situation in hich seve al inte est g oups in society, especially g oups ith economic inte ests, satisfy thei inte ests th ough the acts of app oaching, pe suading, affecting, colluding ith the policy make s fo the issuance of state policies benefiting such g oups’ inte ests, ithout the conside ation of the gene al inte ests Policy co uption causes se ious consequences to both the State and society First, it defo ms the policies, c eates an unfai competition envi onment, p otects g oups’ inte ests, cause astes o uses ineffectively impo tant national esou ces, and i eve sibly lo e s the count y’s economy development econdy it damages the people’s la ful ights and inte ests, dest oys values of gove nance such as integ ity, democ acy, ustice, co upts the public se vants’ mo ality, dec eases the effectiveness of public gove nance and uins the people’s t ust in the State As commented by a fo me membe of the National Assembly, “a defo med policy, in the case of being adopted, might inc edibly benefit a ce tain numbe of individuals, but at the same time might lead to the exhaustion of the national esou ces An illegitimate po e being inse ted in the la s might legalize the unlimited assment of some people, but also aise the big difficulties in the business ope ation and people's life” The cause of policy co uption might be app oached f om seve al pe spectives F om the vie of public pa ticipation in the policy-making p ocess, this pape conside s the natu e and cause of policy co uption based on the fo mula: Corruption - Monopoly + ecrecy - Accountability2 nhandan com vn/cuoituan/phong-su/ Nguyen Sy Dung, ‘A nti-Co uption o f Policy’ (20 8) accessed Novembe 20 This fo mula is based on the p oposal of a g oup of th ee autho s Robe t Klitgaa đ, Ronaỉđ Maclean-Aba oa and H Lindsey Pa is: Co uption = Monopoly + Disc etion - Accountability Ou fo mula as “Co uption = Monopoly + Sec ecy - Accountability” is developed in o de to suit the a ea of policy co uption Acco ding to this fo mula, “sec ecy” is one of the basic causes ofpolicy co uption The disc etion is conside ed as a component of monopoly in policymaking See mo e: Klitgaa d, Robe t, Ronald MacLean-Aba oa and H Lindsey Pa is, ‘A P actical App oach to Dealing ith Municipal Malfeasance U ban Management P og amme’ ( 6), No 7, U ban Management P og amme Wo king Pape Se ies, Nai obi, Kenya, 0- 48 ... a e p otected f om all inte ventions such as collecting and dist ibuting; monito ing and inf inging on esidential and o king places; int uding, cont olling, tampe ing in communications, etc 2... copying, photocopying and sending info m ation specified in Clause 2, A ticle of the La on Info m ation Access; Ci cula No 64/20 8/TT-BQP Stipulating the p ovision of info m ation in the Minist... eatening the social stability, uining the mo al and democ atic values of society, inte cepting the development and imp ovement of the economy and damaging the people's t ust in the State and la