“Desperate times, desperate measures”: an appraisal on Vietnamese law’s limitation of rights in the COVID-19 crisis

Abstract

This research is a pioneering attempt to comprehensively analyze the responses of Vietnamese human rights law to the challenges posed by Covid-19. Using conventional, trusted legal research methods, most notably desk review of legislation and case law analysis, this research affirms that this pandemic once again continually demonstrates the significance of limitation of rights doctrines to human rights protection in the most extreme conditions. In the case of Vietnam, many anti-epidemic measures, although highly efficacious in epidemic prevention, have placed immense and disproportionate restrictions on constitutional rights. While several limitations of rights doctrines in international human rights law have been partially recognized in Vietnamese law, the internalization, clarification, and application of these doctrines still face notable difficulties in practice, hindering the protection of rights when Covid-19 occurs. The article then suggests proposals to concretize the boundaries and conditions of the limitation of rights and criteria for balancing the stakeholders’ interests to improve Vietnamese human rights law, with implications for similar developing and transition jurisdictions’ legislative processes.

Keywords:

• Limitation of rights
• covid-19
• state emergency
• human rights
• Vietnam
• law
• constitutional

REVIEWING EDITOR:

• Heng Choon (Oliver) Chan, Department of Social Policy, Sociology, and Criminology, University of Birmingham, Birmingham, UK

SUBJECTS:

• Public Law
• Human Rights Law & Civil Liberties
• Asian Law
• Comparative Law
• Jurisprudence & General issues

1. Introduction

The world has observed the devastation of the Covid-19 pandemic, affecting almost all segments of people’s lives. The segment of law was not excluded since many reports and studies recognized and analyzed the pandemic’s direct impacts on the law of many countries regarding a variety of areas of law in human rights protection, epidemic control, immigration, and others (Hostmaelingen & Bentzen, 2020; Joseph, 2021; Lebret, 2020; Mykhalovskiy et al., 2020, p. 975). Under the pressure of this extraordinary event, states have to react promptly, which results in other legal issues, inter alia, discrimination, crimes, and restrictions of personal freedom (Joseph, 2021, pp. 1–4; Spadaro, 2020, pp. 319–320), or exacerbates pre-occurred problems. Among those issues caused by the pandemic, the clash of rights deserves the greatest attention. In urgent situations with a shortage of available resources (such as medical equipment, vaccines, food, shelters, and others), an infectious pandemic spread, or the occurrence of a national disaster, no state can ensure a full provision and protection of rights for all legal entities. This struggle requires the states and their legal system to balance the interests of various entities and reminisce about the issue of prioritization and limitation of personal rights.

The recent epidemic is one of the few cases where constitutional rights have been radically restricted globally, providing an excellent opportunity for the limitation of rights theories and the right limitation system to be tested in practice.In Vietnam, in confrontation with the enormous pressure from the COVID-19 epidemic, the Vietnamese government has had to introduce strong epidemic prevention measures, many of which have restricted fundamental personal rights. These measures demonstrate how the Vietnamese nascent legal system on rights limitation can be examined in an extremely desperate situation. Although the Vietnamese pandemic prevention campaign and its measures were considered to be relatively effective and successful and have achieved remarkable achievements (Dabla-Norris et al., 2020; Grant, 2021; Malhotra, 2020), the success had to come at the expense of significant limitations on constitutional rights for a relatively long time, causing significant impacts on people’s lives. The end of the pandemic is now the most appropriate moment for reassessment and restructuring of this right limitation system. The lessons of Vietnam - a developing socialist state but inheriting Western human rights concepts and standards - are intriguing and deserve further attention, especially from similar developing and transitioning countries, as a reference for legal transplantation and harmonization following international human rights law requirements.

To accomplish these above-stated objectives, the article will mostly employ qualitative research methods in social sciences. It is principally a desk-based study. To develop and advance the authors’ main legal arguments, the traditional doctrinal research which is black letter law based on actual and in effect Vietnamese statutory and regulatory provisions along with related Vietnamese authorities and courts’ decisions. This is to say this research principally focuses on Vietnamese laws and situations. The article might occasionally cite other countries’ laws or experiences, but they are not the principal problems that this research is trying to solve. These domestic laws and decisions will be put to test against internationally accepted and established philosophies of law. By doing so, the authors hope that the lessons of Vietnam - a developing socialist state but inheriting Western human rights concepts and standards – are not only intriguing but also can deserve further attention, especially from similar developing and transitioning countries, as well as play as a reference for legal transplantation and harmonization following international human rights law requirements by other developing and in transition countries in the world.

This article will, therefore, be structured as follows. The first and second parts provide a general introduction to the theoretical framework for limiting constitutional rights in general human rights law and Vietnamese law. The third and fourth parts will further analyze the conditions and standards of limiting rights, as well as their practical application in Vietnam during the Covid-19 pandemic. Based on such analysis, the fifth section will clarify lessons learned and propose to improve the law on the limitation of constitutional rights in Vietnam before the final section concludes.

2. Theoretical frameworks of human rights limitation

The notion of rights constitutes a pivotal element in any democratic community, providing the foundation for personal liberties and the preservation of human worth. Nonetheless, the implementation of these entitlements is not devoid of constraints. Constitutional democracies across the globe acknowledge that the assurance of rights necessitates the implementation of rational limitations to ensure the protection of public welfare, the preservation of societal harmony, and the equilibrium of conflicting interests (Sajó & Uitz, 2017, pp. 404–405, 408–409).

Restriction or limitation to human rights is widely understood as a rejection of the State to allow the beneficiaries to exercise or enjoy their legitimate right to a certain extent (Barak, 2012, pp. 102). Constitutional restrictions on rights are a crucial element of democratic administration (Tommasoli, 2012), demonstrating the complex interdependence between personal freedoms and communal concerns (Webber, 2009, p. 4). Across the annals of time, diverse legal frameworks have confronted the formidable task of establishing and demarcating the parameters of personal liberties. The architects of contemporary constitutions endeavoured to achieve a harmonious equilibrium between endowing individuals with authority and safeguarding the communal welfare of the populace by drawing upon philosophical and legal lineages (Mertens, 2020, pp. 41–43, 49–51). The meticulously designed constitutional restrictions serve the purpose of upholding societal concord, safeguarding marginalized communities, and averting the exploitation or misapplication of personal entitlements.

It could be concluded that the constitutional limitations of rights are founded on the delicate balance between individual liberties and societal concerns (Barak, 2012, pp. 164–167). To achieve that equilibrium, setting conditions for rights limitation is inevitable, as demonstrated in the expressed requirements for the limitation of rights provided by the international bill on human rights (UDHR, ICCPR, and ICESCR) and other regional or national legal documents. In general, these conditions consist of (i) "prescribed by law", (ii) for "legitimate purpose", and (iii) necessary and proportional (UN Commission on Human Rights, 1984, p. 4; International Covenant on Economic, Social and Cultural Rights (ICESCR); Barak, 2012, p. 21; Emanuele Sommario, 2022, p. 502). For the first condition, international treaties widely recognized that rights must be limited according to the provisions "by law” (“determined by law”, “provided for by law”), with a broad concept of "law", including legal documents, administrative regulations, and international treaties (Human Rights Committee, 2011, para 25).

Regarding the second condition, it is widely recognized that governments may impose limitations on specific civil liberties as a means of safeguarding citizens to meet the just requirements of morality, public order, and the general welfare in a democratic society.¹ Imperatively, any limitations imposed in this sense should be balanced, essential, and open to legal scrutiny to avoid unjustified encroachment upon personal liberties. However, there are no fixed universal definitions of those concepts. Public morals are normally influenced by many social, philosophical, and religious traditions, which change over time (Gert & Gert, 2020), and limitations this purpose must be based on principles not coming from a single tradition exclusively (Human Rights Committee, 2011, para 32). Similarly, the concept of protecting public order extends to the protection of rules securing the functioning of society or the set of fundamental principles on which society is founded (Daes, 1983, p. 175; Human Rights & Equal Opportunity Commission, 1991, p. 12). Public health is also commonly listed as a legitimate aim: states can limit rights if there is a serious threat to the population’s health, and the limitation applied shall be specifically for preventing the disease and providing care (UN Human Rights Committee, 2011). National security is also one of the most problematic concepts to interpret, as its definition varies and could be defined by actors who respond to cultural factors (Burke-White, 2004, p. 267.). Specific provisions on these terms, therefore, are then passed on to international or regional agreements or even national laws to define.

For the third condition, necessity shall also be considered through a careful assessment of the expected benefits and detriments of limiting fundamental rights. The Human Rights Committee’s General Comments on various types of human rights demonstrate that a limitation to human rights shall be consistent with the principle of proportionality and be suitable to achieve the desired results with the mildest side effect (Human Rights Committee, 2004, para 6; 2011, Article 19; UNHCR, 1999, Article 12). Constitutional theorists widely suggested to assess the margin of proportionality through a four-condition test consisting of (i) legitimate goal, to protect the lawful public and private interests, (ii) suitability or rational connection between the restriction and the goal, (iii) necessity, as there are no less restrictive means to reach the goal, and (iv) a proportional stricto sensu balancing, as costs must be lesser that benefits of applying the restriction (Barak, 2012, pp. 250–252, 340–343; Moller, 2012, p. 711).

3. Brief introduction of the Vietnamese law on the limitation of fundamental rights

Discourses on limitations of rights are not state-of-the-art in the law of various jurisdictions worldwide, but in the case of Vietnam, those have strongly emerged since the start of this 21^st century (Dang & Le, 2019, p. 9). Tracing back to history, this might be explained by the fact that the Vietnamese legal system has roots in Socialist law for decades when the concepts of human rights were just symbolic. Even until the last decade of the 20^th century, public legal and political discussions gave little weight to human rights (Bui, 2014, p. 87). This continued until 1986 when Doi Moi occurred: this economic reform opened the Vietnamese economy to the world, and the Vietnamese processed on their way to building a market economy but in a socialist-oriented way (Tran, 2020). This, in turn, reshaped the legal system, paved the way for incorporating the rule of law into Vietnam, and opened forums for further discussions on human rights since the 1990s (Bui, 2014). However, the State has taken a gradual approach and only recognized a certain number of human rights under the concept of “citizen rights” in the 1992 Constitution. Following such a movement, this concept has only been discussed since 2001, and finally, the first expressed clause on limitations of rights was recognized under the 2013 Constitution as an attachment to a new entire chapter on human rights.

The aforementioned concept of limitation of rights has been clearly reflected in provisions in the Constitution and other laws. Article 14.2 of the 2013 Vietnamese Constitution lays a crucial legal framework that human rights could only be limited by law in case of necessity for reasons of national defense, national security, social order and safety, social morality, and community well-being. Article 15.4 of the Constitution also requests that the enjoyment of human rights must not be “misused” to infringe the national interests and others’ lawful rights and interests. According to Article 32.2 of the 2013 Constitution, private assets are only compulsorily purchased by the states in case of “extreme necessity” for national interests and a state of emergency. The Civil Code 2015 also specifies that civil rights are recognized and protected and can only be limited as prescribed in law in exceptional circumstances due to national defense and security, social safety and order, social ethics and the community’s health. These explicit regulations affirm that Vietnam departed from the previous statit rights approach to adopt the universal rights approach, a widely recognized concept of limiting rights in international human rights law (Bui 2018, p. 184).

In an extreme and unprecedented situation, such as a COVID-19 outbreak, it is inconceivable for states to secure all human rights enjoyment. This leads to an issue of prioritization as to which rights and interests shall prevail. This question was predicted and answered by international human rights laws by categorizing all rights into two groups: absolute and non-absolute. Only a few human rights are characterized as absolute, such as freedom from slavery, servitude, and torture, which shall not be limited or restricted in any circumstance, even when a state of emergency occurs. All other human rights are included in the non-absolute group, and the states are allowed to restrict those rights if (i) such limitations are for a legitimate purpose, (ii) the limitations are necessary and proportionate to reach that purpose, and (iii) they shall be specified by law (Spadaro, 2020, pp. 320–321.). If there is no explicit constitutional rules specify a limitation of the application scope of a fundamental right, theoretically the right holder is allowed to exercise the right without any restriction (Alexy, 2002, pp. 47–49).

However, while the delimitation of absolute rights has been familiar in Vietnamese academic circles and widely taught in universities (Bui, 2018; Nguyen, 2015; Nguyen & Dang, 2014, p. 698), it might take longer for these theories to be officially recognized by the State and integrated into specific legislation for practical application. Although Vietnam became a state party of several fundamental international human rights conventions such as ICCPR and ICCSPR since 1982, these conventions do not have an immediate effect in Vietnam. Alternatively, these regulations and concepts shall be initially incorporated into Vietnamese laws, for instance, by being recognized in the 2013 Constitution, and then particularly be clarified in relevant laws for de facto application.² Therefore, practically in Vietnam, the state is entitled to restrict all human rights, even though some of those might be absolute under signed international conventions.

4. Legitimate grounds for limiting constitutional rights in Vietnam

The limitations imposed on constitutional rights are multifaceted and encompass a broad range of factors, including but not limited to the protection of national security, public order, preservation of public health or morals (public interests), or respect of the rights or reputations of others (other private interest).³ The limitations in question exhibit a varying degree of specificity and scope depending on the jurisdiction in question, which indicates the distinct cultural, historical, and political circumstances that characterize each individual nation. Notwithstanding, prevailing principles and global norms govern the determination of these boundaries, fostering a comprehensive structure for safeguarding human rights. Various relevant studies have observed many details and indications expressing that these universal principles of human rights law were recognized and reflected in Vietnamese regulations. However, the details of these principles and their practical application still need to be improved, which is evident in the measures to prevent the COVID-19 pandemic in Vietnam.

4.1. Conflict with public interests: national security, public order, health or morals

In Vietnam, reasons for limiting rights are expressed under Article 14.2 of the 2013 Constitution, which comprises of "national defense, national security, social order and safety, social morality, and community well-being". "National defense" is broadly explained as "the defense of the nation with the combined strength of the whole nation" as per the 2018 Law on National Defence.⁴ The 2014 National Security Law briefly defined "national security" as "the stability and sustainable development of the socialist regime and the State …, the inalienability of the independence, sovereignty, unity and territorial integrity of the country", and national security protection means "the prevention, detection, stoppage of, and the struggle to frustrate, all activities of infringing upon the national security".⁵ The concept of public health is also generally expressed in the 1989 People’s Health Protection Law, that "health is the most precious property of human being" and to protect that the State shall "takes care …[and] decide on the regime, policies and measures to protect and improve People’s health".⁶ "Social order and safety" has only been partially defined through the definition of "social order and safety maintenance", which "means preventing, detecting, stopping and fighting against crimes and illegal acts".⁷ However, these terms above have not been further clarified in detail by either the Constitution or any relevant legal documents, while the others such as "social morality" and "community well-being" have no explicit legal definitions.

The lack of thorough definitions of the above grounds could not prevent the Vietnamese government from limiting human rights when necessary, as expressed in the recent COVID-19 prevention campaign in Vietnam. Undoubtedly, this pandemic has been characterized as a devastating threat to public health, as it tragically caused nearly 3 million deaths in 144 countries worldwide (WHO Director-General, 2021) and forced all states to take all possible mitigation measures (UN Human Rights Committee, 2004, p. 7). Since the initial days of the pandemic, the Vietnamese government had realized this epidemic’s hazardousnessand soon started to apply prevention measures rightfully in line with the pandemic transmission pace, in the sense that “fighting this pandemic means fighting enemies” said by the Vietnamese Prime Minister.⁸ These measures showed their effectiveness as until May 2023 around 43200 deaths have been recorded, ranked 26 over 231 countries worldwide (Ministry of Health, 2023). Vietnam has been perceived as one of the most successful nations in handling Covid-19 since the commencement of the pandemic (Nguyen, 2020), and stood out as an “oracle” amid a chaotic world affected by the disease. However, as a double-edged sword, this success has been exchanged for many severe restrictions to the enjoyment of private rights and other legitimate interests of individuals, which have been applied for years (Ivic, 2020). These “indirect” impacts of the pandemic on the law might be much larger than in other countries, which straightly breeds further in-depth research on the regulatory schemes of limiting personal rights.

4.1.1. For public health reasons

Generally, the applied measures reflecting a clash between public and private interests are categorized into two types: separating and tracking. For separating measures, the Vietnamese government (1) applied a mandatory quarantine policy, (1) banned international entry, and (3) social distancing. Regarding the quarantine policy, since the 6^th week since the first case, local governments started to rigidly isolate in concentrated centers anyone living and crossing an infected area or having a connection with suspected people. Afterward, to prevent the further spreading, all entry of international citizens was suspended at the 8th week, and illegal entries were severely punished by the courts.⁹ When the pandemic tremendously escalated, orders were quickly issued restricting mass gatherings, limiting people’s movement, suspending economic and cultural activities, and most intensely, applying social distancing in the whole country for many weeks.¹⁰

While these measures are effective in protecting public health, they strongly restrict the enjoyment of fundamental rights and interests of those being applied. Due to a large number of quarantined individuals and the shortage of spaces and facilities in concentrated centers, insiders had to share rooms and stay at a close distance. Therefore, the measure placed non-infected people under an abnormal opportunity to get cross-infection and become the target of illegal acts such as thefts,¹¹ negatively affecting their right to health, property, and movement under Articles 20, 32.2, and 38 of the 2013 Constitution. Regarding the social distancing policy, its effects on fundamental rights in many areas, such as movement, right to experience and approach cultural values, business freedom, and others are widely observed. From the outside world, Vietnamese overseas citizens such as workers and students had to wait for months to return home through special repatriated flights. As the number of seats and flights are limited and criteria for choosing were not publicly announced, concerns were raised on whether non-discrimination principles and the overseas citizens’ rights to health in Articles 16.2 and 17 of the 2013 Constitution could be ensured. Recently, the State has discovered and criminally sanctioned acts of giving bribes for slots on rescue flights and flight licenses, partly confirming the above concerns (Dang, 2023; Yen, 2023).

Regarding the tracking measure, personal details and precise schedules of the infected and their families were investigated¹² and revealed to facilitate contact tracing, in order to find and isolate all infected people.¹³ The 2016 Law on Access to Information regulates that information relating to public health shall be publicly disclosed,¹⁴ but if such disclosure may affect a third party’s privacy, the reveal needs the approval of the party or relevant authorities.¹⁵ Nevertheless, suspected people all had to disclose information for public health rationale, while acknowledging that sometimes the secrecy of their sensitive information sometimes might not be carefully protected, leading to leaks of their real names and contact relationship details on social media (Office of the Health Department of Ho Chi Minh City, 2021). These public reveals seriously deprive their “inviolable” right to privacy promulgated by Article 21 of the 2013 Constitution and Article 38 of the 2015 Civil Code. The above devastating infringement might be because, at the moment, obligations for information holders in collecting, storing, and using the personal data of others were not fully cleared and seriously enforced. Several Vietnamese laws did mention but failed to uniformly define the connotations of “personal information” or “privacy” and relevant terms,¹⁶ while specialized laws on personal data protection were being developed. Therefore, determining data holders’ personal responsibility in data breaches has been too troublesome, deterring the injured party from detecting the exact wrongdoers or getting compensated.

4.1.2. Ensuring public order

The unrestrained leaks of details on infected people on social media might also give rise to fake news, as in the pandemic time, people are thirsty for updating uncensored information as soon as possible rather than following credible but restricted and curtailed official sources. To stop the spread of fake news, the government imposed administrative fines from USD$ 320 to 520 on any people spreading “fictitious information” or “information causing panic in society”.¹⁷ One may question how to practically determine what information may "cause a panic in the society" and the degree of "fictitiousness". A citizen in Hue city was sanctioned for spreading “fictitious information” when sharing personal details of Covid-19 suspects “before the official announcement of the relevant authority” (Nhat 2020). However, if the shared information was correct, the sharing shall only violate the victim’s privacy rights rather than spreading “fictitious information" and other people should or shall know that information, as per their access to information right recognized in Article 25 of the Consitution. However, it is still understandable and reasonable to apply that sanction, which was specifically suitable to protect public order in the pandemic period.

4.1.3. A focus on state emergency

When public interests are at stake, international human rights law allows the states to restrict fundamental personal rights by announcing a state of emergency.¹⁸ As an ICCPR contracting party for four decades, Vietnam has yet to comprehensively developed principles and specific regulations for the conduct of both individuals and state agencies in a state of emergency. The National Assembly only adopted a general legal document dealing with extreme situations named the 2000 Emergency Ordinance; unfortunately, it has still been kept secret (Bui, 2020, p. 2). Only several parts of the Ordinance could be found in the Government’s Decree 71/2002, which refers to and specifies a few of its articles for execution in case of a national disaster or dangerous epidemic. However, the Decree does not provide such awaited definition and just generally points out who has the exclusive right to proclaim a state emergency and broadly describes 20 measures to enforce the proclamation.¹⁹ Particularly dealing with infectious diseases, the 2007 Law on Prevention and Control of Infectious Diseases provides general principles and procedures for proclaiming a state emergency. Generally, when a disease becomes widespread or has a rising fatal rate,²⁰ a declaration on infectious disease shall be conducted. If it devastatingly spreads to an epidemic and threatens people’s health and the national socio-economic situation, a “state of emergency” shall be declared.²¹

However, a state of emergency was not proclaimed during the pandemic period. Although ministries have shown their consideration on whether Covid-19 in Vietnam was threatening enough to declare a “state emergency” since the 2nd month of the epidemic, the government did not decide to proclaim it as such (Vietnamese Government Online Portal, 2020). Nevertheless, due to the urgency of epidemic prevention and control and a high need for executive documents, the Vietnamese government had to issue various orders in the form of directives with a high degree of compulsion, even though these were not legal documents recognized by the 2015 Law on Promulgation of Legislative Documents.²² It should be noted that, although the provisions on the state of emergency in Vietnamese law have not been fully completed, those still provide a lawful chance for the state to derogate from protecting rights without conflicting with the private enjoyment of constitutional and legal rights. When a state of emergency is declared, private actors shall understand and accept that even their fundamental rights might be severely restricted by the objective requirements of the common interests (Gross & Ní Aoláin, 2006, p. 257). On the other hand, this declaration also indicates that any such restriction only aim to secure the common good and maintain in the period of the state of emergency, as protection of fundamental rights shall be rightfully and fully ensured by the State afterward.

4.2. Conflict with other private interests: respect of the rights or reputations of others

The harm principle is a fundamental rationale for the imposition of constitutional restrictions (See Edwards, 2014, pp. 253–285; Nils, 2002, pp. 357–389; Norris, 2014, pp. 299–326; Stanton-Ife, 2022). The principle in question posits that exercising an individual’s rights must not result in harm to others or compromise public interests. For instance, the fundamental right to freedom of expression is significant; however, it does not extend to speech that instigates violence or disseminates hate speech. Another example is the fundamental right to privacy, which is of utmost importance but may be curtailed if it clashes with national security concerns, such as when scrutinizing possible terrorist operations. This principle has also been recognized in both the 2013 Vietnamese Consitution and the 2015 Civil Code, which stipulates that the establishment, exercise and termination of personal rights shall not infringe upon the legitimate rights and interests of others.²³ Nevertheless, the practical application of the principle requires more than a mere integration to statutes, as state intervention is highly needed to protect the private rights being infringed by another private party, especially in extreme circumstances of the COVID-19 pandemic.

For instance, while the right to speech is recognized under Article 25 of the Constitution, usage of this right shall not be abused to damage the reputation of others, which is also a constitutional protected right.²⁴ In the initial period of the pandemic, social media informants created and shared much fake news on the spread of the disease to a particular area, street or person. One of the most famous cases was Victim No. 1883, who was defamed by fake news of having an erotic massage and transmitted the virus to a staff. This fake news existed for weeks and seriously damaged the victim’s reputation before being officially corrected by the relevant authorities. The only sanction imposed for such defamation was a minor administrative fine of 7 million VND (equivalent to USD 216) (Dung, 2021). However, even logging a civil lawsuit, the victim will face certain difficulties in proving the mental and collateral damage, pure economic loss and causation, as Vietnamese tort law has not fully determined criteria to calculate those.

Another telling example was the case of Victim No. 17, who got infected after an overseas journey, failed to comply with quarantine policy, and rightfully placed herself and the whole family under a full in-depth investigation by the whole community. All of their visited places and personal relationships were revealed, discussed, and analyzed with the desire to find disease links, and they also confronted many offensive comments and making-up stories, criticizing their dress and lifestyle (Nhat 2020). In this specific circumstance, Victim No.17 must be carefully investigated and prosecuted as she violated crucial regulations and transmitted a deadly disease to the community. Nevertheless, that action shall not be the rationale for the community to invade her and her family members’ privacy and damage their honor and dignity. An intervention of the state to reasonably secure Victim No.17 and her family’s fundamental rights was highly in need at that moment and should be in a timely manner.

5. Considerations for limiting rights

Article 19(3) of the ICCPR permits limitations on the rights if such restriction is (1) provided by law and (2) necessary for respect of the rights or reputations of others, for the protection of national security, public order, or public health or morals. For the first requirement, a norm or a “law” must be (i) formulated with precision to allow a person to regulate his or her conduct accordingly, and (ii) must be available for the public to refer (Human Rights Committee, 2011, para 25). This formal requirement of legality is an essential guarantee of the rule of law, as there must be a legal basis for any restrictions. For the second requirement, any measure restricting the enjoyment of rights shall be necessary, and the state bears the burden of proving its justification. In addition, any restrictive measures must conform to the principle of proportionality, as it should be (i) appropriate to achieve their protective function, (ii) the least intrusive instrument amongst those that might achieve their protective function, and (iii) proportionate for the protection of the interest. This principle shall be upheld in both substantive law design and the practical application of the states (Human Rights Committee, 2011, para 34). In Vietnam, these elements for considering human rights restriction are recognized in the well-known Article 14.2 of the Constitution, as two conditions shall be surmounted: “prescribed by law” and in case of "necessity”.

5.1. "Prescribed by law"

5.1.1. A board concept of "law"

Regarding the first condition, the notion of "law" in Vietnamese law should be defined to include either statutory law issued by the National Assembly or more broadly all legal documents issued by various other state agencies. Various studies have also confirmed that allowing non-constitutional legal documents to limit rights is common in many other jurisdictions (Bui, 2015, p. 3). However, in Vietnam, the list of laws is explicitly provided by the 2015 Law on the promulgation of legislative documents,²⁵ accordingly there are only 15 types of recognized legal documents. Besides, in practice, clauses limiting fundamental rights could be identified in documents issued by governmental bodies at multiple levels (Bui, 2015, p. 8). Wordings of these clauses limiting rights might sometimes be too broad and should be further interpreted to apply in practice. However, the official interpretation is rarely provided due to the inactivity of the Standing Committee of the National Assembly - the body holding exclusive authority to interpret the Constitution. Therefore, some researchers have raised a concern that state agencies at various levels might exploit these ambiguous clauses above to restrict constitutional human rights in the name of protecting the public interests (Bui, 2015, p. 8).

The pandemic has provided a practical example of how the ambiguities in Vietnamese law regarding this matter may lead to issues. Typically, personal rights can be limited by a Vietnamese legal clause following three patterns: (i) prohibiting a legal action, attaching with legal responsibilities, (ii) intervening in legal relations to force the execution of specific behavior, and (iii) attaching conditions and liabilities to the enjoyment of rights (Bui 2018, p. 12). However, the particular limitations relating to Covid-19 might not easily be classified under the above patterns, as in many cases, the applied policies were combined measures and may fall into more than one category. For a faster and more direct response to the pandemic escalation, Vietnamese governmental bodies chose to give orders in the form of “directives”. While these directives strictly restricted many human rights in various areas and might be highly in need in the tragic pandemic circumstance, their legitimacy is questionable, given a "directive" has not been perceived as one in 15 types of legislative documents in the 2015 Law on the promulgation of legislative documents described above.²⁶ Local governments often refer to these directives as the legal basis for applying prevention measures and executing these directives by issuing more lower-level directives.²⁷ The multi-level of directives as such negatively affected the legitimate expectations of various parties on the enjoyment and protection of their rights, leading to a certain instability and difficulties in practical application (Truong, 2021).

5.1.2. A focus on secret law

One should be also noted that the ICCPR’s notion of law requires legal documents to be publicized or at least made accessible to the community. When governmental agencies take measures restricting the enjoyment of fundamental rights according to classified rules, without accessing such regulations, the affected people might consider these conducts lawlessly, arbitrarily (Manes, 2018), or even discriminately. Such doubt may devastatingly hinder the state’s efforts to unite the country in emergency situations, such as a pandemic spread. Without acknowledgment of a secret regulation as such, the public cannot check its legitimacy, contribute input to the law, or find any non-compliance and abuse of rights conducted by the authorities (Goitein, 2016). Thus, governmental agencies are given broad discretion to interpret and apply the hidden rules and might exploit this to develop unfair laws or impose them inappropriately (McDermott, 2018).

This principle is also recognized in Vietnamese law, as the 2016 Law on Access to Information requires state officials and institutions to publicly disclose “legislative documents”,²⁸ and even “administrative documents with universal effect and administrative procedures of state agencies”.²⁹ However, when a law contains "state secrets" and might be considered a "secret law", the 2015 Law on the Promulgation of Legislative Documents allows agencies not to publish it.³⁰ According to the 2018 Law on State Secrets Protection, the definition of "state secrets" may cover a wide range of information relating to “national defense, security and cryptography”, and others.³¹ As the detailed meaning of "state secrets" has not been defined, it is unclear whether it also covers regulations on state of emergency, for instance, the most essential law in extreme situations named the 2000 Emergency Ordinance. Based on the information disclosed through an implementing Degree No. 71/2002/NĐ-CP, it is logical to guess that this classified Ordinance clarifies important principles in dealing emergencies, authorities of key personnel and agencies, and special measures that might be applied in an emergency, and others.

While the 2000 Emergency Ordinance has not been referred to serve as a basis for prevention measures in the COVID-19 pandemic, it should not be kept secret and should be applied rather than other directives for several reasons. First, as mentioned above, ICCPR allows states to derogate from protecting human rights after their promulgation of state emergency regulations and successfully proclaim it accordingly; the 2000 Emergency Ordinance specifying such content may serve as a ground to legitimize that derogation. Second, keeping this Ordinance secret may prevent the community from forming legitimate expectations of their rights and obligations to perform when a national emergency occurs. Without acknowledging the boundaries of their rights and restrictions during the pandemic period, individuals may not exercise their rights normally due to a fear of violating secret regulations. Moreover, without knowing which and how governmental agencies might react to an emergency, people may overreact to prepare for the worst scenarios or, by contrast, be too relaxed and unprepared and expect governmental support. Lastly, although the state agencies have particular knowledge, experience, and available information on the matter, seeking advice from specialized experts in the private sector or a public consultation is also a wise approach before applying important policies or measures that affect everyone in emergencies.

5.2. “Necessary”

The doctrine of proportionality is of importance to ensuring human rights protection worldwide, as a disproportionate restriction of rights is devastating as a direct violation of the rights recognized (Bui, 2015, p. 7). When a conflict of rights upsurges, this doctrine serves as a core for striking a balance between conflicting parties (Moller, 2012, p. 710). Article 4 ICCPR might serve as an essential framework at this point, which determines that any derogation to human rights protection, even in extreme situations, cannot be inconsistent with international law obligations, cannot be unproportionate, or discriminate on the grounds of race, colour, sex, language, religion or social origin (UN Commission on Human Rights, 1984). As previously discussed, the tests for proportionality are (i) legitimate goal, (ii) suitability or rational connection between the restriction and the goal, (iii) necessity, as, and (iv) balancing or fair balance (Moller, 2012, p. 711; See also: Barak, 2012, pp. 250–252, 340–343).

Regarding Vietnamese human rights law, the concept of proportionality seems to be adopted to the Constitution in Article 14.2, which states that fundamental rights may be restricted only in case of "necessary". However, Vietnamese laws still needs to clarify this term in a detailed manner, and the Constitution mentions no words for proportionality. Relevant discourses on this issue in Vietnam are often restricted to a theoretical approach (Bui, 2015, p. 11; Dang & Le, 2019). This major shortfall has created a significant loophole in the law on the restriction of fundamental rights in Vietnam. Limitation of rights must always be considered an exception to the default rule of rights protection.³² As a result, any limitation as such must be proportionate and appropriate to the pre-determined purposes only and without prejudice to other rights guaranteed by law. This COVID-19 pandemic, paradoxically, has given an opportunity to study whether the Vietnamese governmental agencies pay attention to proportionality in designing prevention measures and how the doctrine might be applied in reality. Generally, under great pressure of an unpredictable and deadly epidemic, rights-restricting measures had to be enacted and applied harshly without being fully analyzed according to the criteria of proportionality, leading to not only ineffectiveness but also over-reaction and over-restriction of private fundamental rights. The article hereunder will analyze several applied measures in such period under four proportionality tests of legitimate goal, suitability, necessity, and balancing (Moller, 2012, p. 711).

First, to stop the pandemic spread, movement bans were considered a traditional but effective measure to directly cut off any chance of transmission. However, the central government constantly emphasized that only particular infected areas would be quarantined, and the circulation of essential goods would not be interrupted to secure the distribution of medicine and necessities. However, local governments in provinces adjacent to the infected Hai Duong province over-reacted by issuing “announcements” that prohibited the movement of all goods coming from such infected province (People’s Committee of Hai Phong Province, 2021). Although hardly condemned by the public, this prohibition lasted for one week and devastated the manufacturing chains of the infected province and relevant corporations (Nguyen 2021). Instead of completely banning all goods’ transportation, better alternatives existed, such as applying a mandatory medical inspection and disinfection of packages, which can minimize the risks but not unnecessarily damage the crucial circulation in the middle of the pandemic period.

Another measure that should be examined is the mandatory isolation of those having a connection with the Covid-19 suspects. According to the LCPID, only those having direct links (talked or touched) to a Covid-19 suspected (who marked F1) or have a close connection with (marked F2 or F3) shall be isolated. However, in many circumstances, the local authorities over carefully imposed 14-day isolation on anyone having a mere and indirect connection to the infectious people (marked F4, F5), or just crossing, living near the vicinity, or coming back from provinces where only a few areas of those having outbreaks (Hong, 2020). Although these decisions had to be made under pressure and might be understandable in desperate times, the overreaction of local governments indicates that balancing needs to be paid attention to, and the rights and interests of the commons quickly dominated that of the private.

One of the most telling examples was the announcement on telecommunications of the Hanoi Steering Committee to close all “non-essential” businesses for more than two weeks from 15 February 2021 to mitigate the spreading pace of the pandemic. This measure was based on Directive 15, which requests the local governments to close all “non-essential” businesses and allow only those providing “essential” goods and services to continue their operation. However, the degree of essentialness has not been clarified under the directive or any other law. Therefore, this ambiguity allows the officials to freely determine which businesses to close. In the case of Hanoi, those "non-essential" were all street food vendors, cafes, and religious places, while restaurants and other indoor activities were still permitted if they complied with certain epidemic prevention requirements. Besides, the scientific guidance in various countries constantly emphasized that dining or sitting outdoors has a lower risk of COVID-19 spread than indoor activities (Guy et al., 2021; UK Health Security Agency, 2022). Therefore, Hanoi’s determination raised questions about whether the authorities have considered the measure’s necessity and the balance between public rights and business freedom.

Fourth, due to the pandemic, demands for masks and other medical equipment rose unexpectedly. However, masks and other medical types of equipment are not included in the lists of goods under a price stabilization program or goods priced by the State.³³ Therefore, sellers are not legally obliged to register and declare their selling prices. However, due to the scarcity of these items in the pandemic period, all acts of hoarding, profiteering, or “intentionally” refusing to sell, or setting "unreasonable" prices³⁴ shall be punished, emphasized by the Market Surveillance Department (Ministry of Industry & Trade, 2020). In this circumstance, Market Management Teams in various areas found many cases that pharmacies raised the mask price five times higher (Vietnam Directorate of Market Surveillance, 2020), and rigidly sanctioned another pharmacy that refused to sell 1950 masks (Ministry of Industry & Trade, 2021). Undoubtedly, these actions quickly and successfully leveled the market and ensured the community access to essential types of equipment. However, given the state emergency has not been proclaimed, it might be unclear whether refusing to sell masks or setting higher prices as such shall be considered hoarding or just exercising freedom of doing business and freedom to dispose of personal assets, which are fundamental rights recognized by either the Constitution or the Civil Code.³⁵

5.3. Ensuring due process

The maintenance of the rule of law and safeguarding the integrity of human rights necessitate the establishment of reasonable and proportionate limitations but also must be subject to judicial oversight, or in other words, following procedural due process to ensure access to justice.³⁶ Through deliberate and comprehensive consideration of these constraints, communities can endeavour to achieve an equitable and cohesive equilibrium that upholds the autonomy of each person while also safeguarding the communal well-being of all members. Access to justice has widely been recognized in international human rights laws (Rhode, 2000, p. 1785). The scope of this term has been expanded from the right to a fair trial in criminal law only to the right to be provided remedies or redresses for grievance(s) committed by others, through either official or unofficial legitimate tools under the human rights law’s standards (Vu, 2009, p. 188). In order to reach such a fair remedy, in each of the actions from recognizing the issues to enforcing the court’s decision, elements including (1) legal protection, (2) legal awareness, (3) legal aid and legal counsel system, (4) adjudication and (5) enforcement and civil society oversight shall be respectively ensured (UNDP, 2021). However, studies show that procedural due process might not be fully respected and is often restricted in emergency situations (Gross & Ní Aoláin, 2006, p. 267). Under the waves of the COVID-19 pandemic, access to justice was also restrained similar to other human rights described above. While effects on elements such as legal protection, legal awareness, and enforcement might be undistinguished, the others such as (3) legal aid and legal counsel system and (4) adjudication were remarkably altered by the pandemic and the measures.

5.3.1. Legal aid and legal counsel system

Generally, to ensure access to justice, after awareness of the grievance, legal aid and advice should be given to the injured people promptly and sufficiently, so they can pursue legal actions until being remedied. According to Vietnamese laws, this legal support might be provided in multiple ways by either public subjects (courts, public legal aid, prosecutors, policemen, etc.) or private helpers (social groups and institutions, lawyers, and others).³⁷ However, due to the pandemic and strict applied measures such as entry bans, quarantine, and social isolation, the injured’s access to legal aid and counsel was temporarily disturbed. For instance, according to the court case 18/2020/HNGĐ-PT Ninh Kieu District, Can Tho City, a defendant’s lawyer could not return to Vietnam to directly advise his client and attend the hearing on time due to the application of the 14-day quarantine measure. Therefore, he requested a postponement, but the first instance court refused to consider such reason legitimate and continued to open trial in the absence of the defendant’s lawyer. Without being properly advised and represented, the defendant had to face great difficulties defending his interests before the court and was defeated afterward.³⁸

Besides, legal aid is a kind of service that should not be delivered online, as the direct meetings between counsels and the involved people for evidence collection and giving advice play an important role in preparing for legal actions. An example of this was indicated in the case 321/2020/DS-PT in Hanoi. The defendant’s lawyers contended that, due to the repeated and unexpected application of social distancing measures for months rightfully before the hearing of the first instance court, the lawyers were unable to effectively collect evidence for strengthening their claims.³⁹ Other disturbances in the legal practicing of lawyers and counsels were also commonly reported on social media and newspapers (Phap Luat, 2020), when meetings with the convicts at the prison were suspended due to concerns about disease transmission, meetings with witnesses were cancelled because people invited had been marked as Covid-19 suspects. Therefore, the pandemic might deprive the convicted and their counsels of a great chance to collect key evidence or to strengthen their belief in the possibility of victory in cases, which might deter them from pursuing justice.

5.3.2. Adjudication

Access to justice gives the accused or concerned people in civil lawsuits the right to be heard fairly and publicly without undue delay by a competent, independent, and impartial tribunal.⁴⁰ However, the pandemic and prevention measures lead to delays in the normal process of the adjudicating system, depriving the enjoyment of such rights. In the pandemic period, almost all litigation procedures were postponed for at least three weeks, including offline filing of lawsuits, direct submission of evidence, circulation of notices and other legal documents, and opening of trials and hearings.⁴¹ The summary hearing was also unavailable due to social distancing measures.⁴² Besides, waves of new offline petitions and the number of hearings surged after the social distance period and stabilizing the outbreaks. Those point out other concerns on which and why several cases must be accepted or heard before others, the issues on limitation period, and whether such pressures might affect the quality and impartiality of judgments.

In another case 01/2020/LĐ-PT of the High People’s Court in Đà Nẵng City,⁴³ the plaintiff lived in France and authorized a legal representative to attend her appeal trial. A few days before the hearing, the legal representative had a health illness, and therefore he submitted a request for a postponement. However, the court decided to continue the proceeding anyway for the reason that, given the defendant’s legal representative lives in the U.S., the postponement(s) might force him to re-entry Vietnam multiple times, what the court observed as “very troublesome in the Covid-19 pandemic period”. While the judges emphasized that the absence of both the plaintiff and her legal representative at the hearing “do not affect the legitimate rights and interests of the concerned people”, one might question whether the right to be heard of the plaintiff side in this case was fully ensured impartially without any discrimination. In other cases, the courts decided to accept the accused’s requests to hear the claims in the absence of any legal representative and the accused themselves for the reason of “compliance with the social distancing measures”.⁴⁴ While these decisions to start the trials were based on the voluntary requests of the accused, one might question whether the fear caused by the pandemic might prevent the accused from directly advocating for protecting their legitimate interests before the courts.

6. Suggestions for improvement

Analyses in the previous parts demonstrate that the regulations on the limitation of rights have been incorporated into Vietnamese human rights law, and there were indicators of its practical application in the COVID-19 period. However, this system of grounds for limiting fundamental rights still needs to be improved, in order to prepare for future threats of emergency situations and improve the legislation process. This improvement ensures that any measure limiting or restricting the enjoyment of fundamental rights (or an application of such a measure as such) shall be examined under objective tests, as per the common standards of international human rights law and also core principles recognized in Vietnamese human rights law. These tests may comprise checking its (1) legality, (2) authority, (3) proportionality, and (4) accountability.

The first test should be based on these questions: whether the situation demands the intervention of the state, or in other words, in which circumstances is the state allowed to derogate from protecting private rights? The answers to these questions shall be constitutionalized or predetermined in laws to stablize all entities’ legitimate expectations. For instance, a list of such circumstances shall be indexed by law, e.g. when a state emergency or other unexpected threats to the public interests. The law on state emergency should be fully developed and released, to ensure that all interested parties are aware of how their rights might be protected in special circumstances. In the long term, loopholes and ambiguities in various laws shall be fixed promptly to prevent inconsistencies in protecting or restricting fundamental rights. It is crucial to enhance the role of the Vietnam National Assembly in this issue as the exclusive body having the right to create and interpret the Constitution and statutory laws (Dang, 2019; see further: Nguyen 2021, p. 4). Second, who is particularly authorized and responsible for applying the intervening measures? This is important to determine the authority’s duty to react appropriately in confrontation to the hazards. Each administration level should only be provided with a restricted number of available measures, and severe ones that significantly limit personal rights should only be exclusive to top-level officers.

Third, what are the conditions to impose and execute each measure? Which rights might be too crucial to be restricted and should be absolute in all situations? To determine the measure’s proportionality, it is also essential for designers of the measures to predict all possible side effects of the measure and strike a balance between affected personal rights and the public interests or other’s legitimate interests and purposes. The measure could only be imposed if necessary, without any other alternative that may reach the same legitimate goal. Format and procedures of the measure shall also be provided, especially the state’s obligation to announce the imposition in a manner that is public, precise, and with proper guidance for public understanding (Nguyen, 2019, p. 10.). For instance, regarding the application of some pivotal measures such as social distancing, movement ban, or business suspension, approval by legislative or judicial bodies might serve as a hurdle to the executive branch for preventing abuse. Safeguarding marginalised populations should also be taken into account when determining constitutional restrictions. Although rights are intended to be applicable to all individuals, specific marginalized and disadvantaged communities frequently encounter obstacles that necessitate tailored interventions. Constitutional restrictions can serve as a means to redress past inequities and guarantee the preservation of the liberties of every individual.

Fourth, alongside the pre-check mechanism, post-checks of the measure’s legitimacy shall also be strengthened. The authorities shall be held accountable for issuing documents similar to “legislative documents”, if these documents may illegally restrict constitutional human rights or result in misconduct of officials. Other violations of the Constitution, such as an abuse of rights, inappropriate applications of special measures, and failures to conduct constitutional obligations, shall also be identified and punished timely. Studies have shown that possible violations of various articles of the Constitution have been increasingly popular in recent years by many agencies in all three branches of the state (Vu et al., 2013). Therefore, some opinions contend that the constitutional review and protection should be mainly conducted by an independent body, such as a special court or a specific council or body of the National Assembly, rather than generally given to legislative institutions at all levels. To fulfill these activities effectively, that body shall be impartial without any influence of all other governmental agencies, has unlimited jurisdiction in any constitutional case, and its decision or judgment shall be final (Vu et al., 2013).

7. Conclusion

Throughout five previous parts of analysis, this article has added a new perspective to discussions about the limitations of rights to the global scholarly. It argues that the inherent and necessary aspect of any constitutional framework is the presence of limitations on rights. The protection of individual liberties and the promotion of human dignity is contingent upon the existence of rights. However, it is imperative that the exercise of these rights be subject to reasonable limitations that take into account competing interests and ensure the overall welfare of society. The function of laws is to safeguard the liberties and entitlements of the populace by prohibiting individuals from causing harm or violating the rights of others. The principle of harm, upon which numerous limitations are predicated, acknowledges that the exercise of individual rights ought not to impinge upon the welfare of others or the public interests of society. Limitation of rights shall be commensurate, essential, and susceptible to legal scrutiny to avert potential exploitation of authority and guarantee that the privileges of individuals are not excessively restricted. Maintaining a balance between safeguarding individual autonomy and upholding societal values is laborious; therefore, careful consideration, accountability, and adherence to the principles of proportionality, necessity, and legality are indispensable in the establishment and execution of these restrictions.

Across time, constitutional democracies have faced the challenge of defining and executing limitations with the aim of achieving a nuanced equilibrium between individual empowerment and the preservation of societal stability. The recent COVID-19 pandemic and its enormous effects continue to demonstrate, once again, the significant role of doctrines in limiting rights in the most extreme conditions. When it comes to Vietnam, the pandemic impacts become even more problematic as this developing and transition country, being in the process of harmonizing core concepts of international human rights law, might need more time to be fully ready for such an intense test.

The Vietnamese lessons of limiting fundamental rights in the desperate times of COVID-19 bring several echoes and experiences to similar countries worldwide on the importance of principles limiting rights in balancing opposing interests and ensuring the general public’s trust in the states in emergencies. However, to secure the legality, appropriateness, and effectiveness of the limitation of rights, it is crucial to develop and finalize explicit statutory regulations on this matter, especially those related to the conditions, exceptions, considerations, and detailed procedures when limited rights. The principles of legality, proportionality and procedural due process shall also be incorporated into the national laws, serving as essential criteria to ensure that any restrictions imposed do not excessively impinge upon fundamental rights. The necessity of limitations in preserving social order, safeguarding marginalized populations, and cultivating a fair and comprehensive community is a topic that may be open to interpretation and influenced by shifting societal standards. Through careful navigation of these constraints, any state can endeavor to attain a fragile balance that maintains the supremacy of the law, acknowledges personal liberties, and advances the welfare of society.

Author contributions

Tran Kien: Conceptulaization; Writing, Revising and Reviewing; Dao Trong Khoi: Writing original draft.

Disclosure statement

The authors report there are no competing interests to declare.

Data availability statement

Data sharing is not applicable to this article as no new data were created or analyzed in this study.

Additional information

Funding

This work was supported by Vietnam National University, Hanoi - University of Law through the research project KL.22.06.QT "Vietnamese Law in the Covid-19 pandemic: challenge and reform".

Notes on contributors

Kien Tran

Kien Tran is a senior lecturer in laws at the University of Law, Vietnam National University, Hanoi. He is also Deputy Director (research) at the Institute for Social Development Studies, Hanoi, Vietnam, a leading NGO, independent research institute in Vietnam. He earned both his PhD and Master degree at the University of Glasgow, Britain in 2015 and 2010 respectively with full scholarships. Prior to his postgraduate studies overseas, he had completed his first law degree at Vietnam National University, Hanoi (2007) with high distinction. Kien has led a number of national and international research into a broad range of legal issues including but not limited to civil law, constitutional law, human rights, intellectual property law, gender equality and gender based violence, immigration law, social media and cyber security law. His research has been funded and sponsored by various funding bodies such as Vietnam National University, Hanoi; NAFOSTED; International Center for Not-For-Profit Law (Washington D.C, US). Kien is also an academic convener of the largest, annual international conference on Vietnamese studies: Engaging with Vietnam Conference.

Khoi Trong Dao

Khoi Trong Dao is a lecturer in laws at the Civil Law Faculty, University of Law, Vietnam National University, Hanoi, Vietnam. He earned his bachelor’s degree with distinction in the Honors Program from the University of Law, Vietnam National University, Hanoi, in 2017. He worked for Leadco Legal Counsel, Vietnam, before doing an LLM at Amsterdam Law School, University of Amsterdam, in 2020. His studies focus on data privacy law, tort law, property law, comparative law, economic analysis of law, and legal education.

Notes

1 Article 29, Universal Declaration of Human Rights (UDHR).

2 According to Article 6.2 of the 2016 Law on international conventions, only in case that parts of several conventions are clear and precise enough to be executed, that parts could be applied directly after the issuance of a decision by the National Assembly, the President or the Vietnamese Government. See also: Vu CG and Tran K (2016) p. 235.

3 See Article 19(3) of the International Covenant on Civil and Political Rights (ICCPR).

4 Article 2 of the 2018 Law on National Defence.

5 Article 3 of the 2014 National Security Law.

6 The preamble and Article 17 of the 1989 People’s Health Protection Law.

7 Article 2 of the 2018 Law on People’s Public Security Force.

8 See Directive No. 15/CT-TTg dated 27 March 2020 issued by the Vietnamese Prime Minister on drastically implementing measures to tackle the rush round of Covid-19 prevention.

9 See, as to the Case 51/2020/HS-ST Bến Cầu Tây Ninh; Case 72/2020/HS-ST Cao Lộc Lang Son; Case 14/2020/HS-ST Điện Biên.

10 See Directive No. 15 (2020) and Directive No. 16/CT-TTg dated 31 March 2020 issued by the Vietnamese Prime Minister on the implementation of urgent measures for prevention and control of Covid-19.

11 See Case 46/2020/HS-ST Bến Cầu Tây Ninh; Case 27/2020/HS-ST Hoà An, CB.

12 See Case No. 77/2020/HS-ST Hoang Mai Town, Nghe An Province.

13 Article 21 of the 2007 Law on Prevention and Control of Infectious Diseases.

14 Article 17.1(n) of the 2016 Law on access to information.

15 Article 7.3 of the 2016 Law on access to information.

16 See the 2015 Civil Code, the 2006 Law on Information Technology, and the 2015 Law on Cyber Security. See further Nguyen VC (2020) p. 9.

17 Article 8.1.(d) of the Law on Cyber Security, Article 101.1 (a) and (d) of Decree 15/2020/NĐ-CP.

18 Article 4 ICCPR. See further: Human Rights Commission (2001).

19 Article 1 and Chapter 3, Decree 71/2002/ND-CP of the Vietnamese Government dated JULY 23, 2002 on details implementing some articles of the emergency order in case of diseases.

20 Article 38 of the 2007 Law on Prevention and Control of Infectious Diseases, guided by Article 2 and 4 of the Decision 64/2010/QD-TTg dated 25 October 2010 on conditions for announcement of epidemics and their termination.

21 Article 42 of the 2007 Law on Prevention and Control of Infectious Diseases.

22 Article 4 of the 2015 Law on Promulgation of Legislative Documents.

23 Article 15.4 of the 2013 Constitution, Article 3 and 10 of the 2015 Civil Code

24 Article 20 of the 2013 Constitution.

25 Article 2 of the 2015 Law on Promulgation of Legislative Documents requires that a legislative document shall be listed in the exclusive list at Article 4 of this law.

26 Directives, such as Directive No. 15 (2020) or Directive No. 16 (2020) are not included in this list. Until 2015, normally directives were issued by local governments like the People’s Commitees to execute legal documents issued by higher-level institutions, according to the 2004 Law on promulgation of legal documents of People’s Councils, People’s Committees.

27 This phenomenon could often be observed through a general appraisal on legal documents dealing with Covid-19 issued by the provincial-level governments, for instance, the most recent Directive No. 10/CT-UBND dated 19 June 2021 on enhancement of COVID-19 prevention and control measures in Ho Chi Minh City, issued by the Ho Chi Minh City People’s Committee.

28 Article 17.1(a) of the 2016 Law on Access to Information.

29 Article 17.1(k) of the 2016 Law on Access to Information.

30 Article 150.1 and 157 of the 2015 Law on Promulgation of Legislative Documents.

31 Article 3, 7.2, 9 of the 2018 Law on state secrets protection (“LSSP”).

32 Article 29 of the UDHR.

33 The list of goods and services that the traders are obligated to registrate or declare selling prices are prescribed under Article 3.1 of Decree 177/2013/NĐ-CP and Article 1.9 of Decree 149/2016/NĐ-CP.

34 According to Article 17 Decree 109/2013/NĐ-CP, the relevant authorities are entitled to impose a fine ranging from USD 872 to USD 1308 on anyone taking advantage of the state’s incentive policies, or extreme situations such as natural disasters or epidemics to set an “unreasonable” price in buying and selling goods and services. However, the degree of being “unreasonable” has not been clarified by the laws also.

35 Article 5.1 of this 2012 Law on price provides that the State manages prices under the market mechanism; and respects right of self-determination of prices, competition of prices of production or business organizations and individuals as prescribed by law. Article 11.1 and 11.3 of this law also allow businesses to “self-determine prices of goods or services which they manufacture and do business” and “adjust prices of their goods or services in accordance to changes of elements forming prices”. The traders shall also be allowed to decide the moment to sell their goods because the freedom of doing business is recognized by the 2013 Constitution. The 2015 Civil Code also provides traders with the right of disposal over their properties and specifies that such rights might only be restricted according to the law.

36 See further Aricle 10, 11, 29 UDHR, Article 4 and 5 ICCPR.

37 See Vu (2009). See further Article 2, 3, 7, 17 of the 2007 Law on Legal Aid.

38 See Case No. 18/2020/HNGĐ-PT Cần Thơ.

39 See Case No. 321/2020/DS-PT Hà Nội.

40 Article 14 of the ICCPR and Human Rights Committee (2007) General Comments No.32, page 250 para 15.

41 According to Directive 02/2020/CT-CA issued by the Vietnamese Supreme People’s Court.

42 See Case 39/2020/HS-ST Gò Vấp TPHCM.

43 See Case 01/2020/LĐ-PT CC Đà Nẵng.

44 See Case 416/2020/HS-ST D City, Bình Dương; Case 427/2020/HS-ST D City, Bình Dương.