Vietnam Time

1/4/2016 2:51:51 PM

Vietnam internalizes its Law on information access

(VNF) - The Ministry of Justice has been collecting feedback for the draft Law on information access before sending it to the National Assembly during its X session (October 2015).

We would like to introduce a brief by National Assembly deputy, lawyer Truong Trong Nghia, relating to the issue.

The Right to Access Information (RTI), is part of the human rights in the International Covenant on Civil and Political Rights (ICCPR), a multilateral treaty adopted by the United Nations General Assembly on December 16th, 1966, and was mentioned in the 2013 Constitution of Vietnam.

Photo: thesaigontimes.vn

Global general rights

It should be known that RTI was first constitutionalized in 1766 in Sweden in the Law on Press Freedom. Under it, citizens have the rights on Press Freedom, but to “blaspheme and criticize the State” are not allowed. They could also access public documents.

It was a real victory of the Swedish Upper House, as the king had special power for accessing information at that time. In 1951, Finland announced its Law on RTI, following by the US in 1966 and Norway in 1970.

There was a big change for RTI development in 1976. Taking stock from the Watergate scandal, the US administration issued a strict Law which ensures the citizen’s RTI.

Right after that, a series of the Western countries produced the same Law, including France and the Netherlands (1978), Australia and New Zealand (1982), Canada (1983), Columbia and Denmark (1985), Greece (1986), Austria (1987) and Italy (1990).

From the point of view of international law, the Universal Declaration of Human Rights (UDHR) in 1948 affirmed that RTI is part of the fundamental rights of the citizen.

By approving RTI, all concerned parties must respect the civil and political rights of individuals, protecting these rights by its legal system and the administration machine, including Vietnam.

Besides, many international agreements and treaties both globally and regionally also mention RTI as a right of citizens which is institutionalized and guaranteed by the State.

From citizen’s rights to human rights

The 1992 Constitution, Clause 69 defines that all citizens have the right to inform. While the 2013 Constitution, Clause 25 said that all citizens have their right to access information.

The difference between the two Constitutions is, “the right to inform” means passively in reaching information (give and gave mechanism), while “the right to access information” means citizens are actively in seeking information, without being granted permission, and the State is responsible.

However, the most important thing here is the legal core. The 1992 Constitution just recognizes “the right to inform” as a right of the individual, which is totally dependent of the relations between the State and its citizens. Each nation should develop this item by itself.

While in the 2013 Constitution, the right to access information is an item that recognized and protected by international law.

According to public international law, human rights are committed to obey by specific actions from concerned countries. For example, a nation must institutionalize the rights by domestic laws, and guarantee its citizens (even in some specific cases, for people who do not hold citizenship, but simply because they are humans) the full benefit of the rights.

The Vietnamese State has institutionalized this item in Clause 14 of the 2013 Constitution.

“1. In the Socialist Republic of Vietnam, all human rights, citizenship rights to civil, political, economic, cultural and social are recognized, respected, protected and guaranteed by the Constitution and the Law system.

2. Human rights and citizenship rights may only be restricted in accordance to the Law in certain cases relating to national defence, national security, social order and safety, social ethics and community health”.

It means that Vietnam must internalize its Law on information access as part of human rights, following criteria set by International Law, as well as guaranteeing citizens the true benefit of these rights.

Finding a logical level

The draft Law on information access has seven chapters, and 33 clauses. In the preliminary research stage, public opinion welcomed the promulgation of the Law, saying that it reflected real democracy and transparent action by the Government, in widely publishing the draft paper and other related documents on the official website of the Ministry of Justice. However, some National Assembly deputies and legal experts raised their voices. For example, some nations' Law on information access not only mentions the scale and comprehension of the rights, but also sets some mechanisms which guarantee citizens can use the law. They are able to sue Government agencies if information is hidden or not provided in a timely way.

This draft paper just refines (Clause 29): A citizen who sustains material or spiritual losses caused by not being provided information or getting wrong information, in accordance to the law, should be associated by a State compensation. It means that if information is not provided for citizens, she/he are able to get compensation. Meanwhile, the core of Law on information access is the right to know information, and in some cases financial compensation cannot be an adequate response to the lack of access to information. In the prohibited items list in Clause 9, they do not mention “strongly prohibited, restricted, harassed, delayed, or seek profit in providing information which must be provided”, while we witness a real limitation in transparency, publicity, red-tape, irresponsible and negative sides from civil servants and public officials.

Besides, the regulation on “restricted access to information” (Clause 21) uses general concepts/phrases, some of them are really open-thinking, polysemantic, and easily leave opportunities for civil servants and public officials to make difficulties.

RTI allows the State to apply its power on restrictions in some cases relating to national defence, national security, social order and safety, social ethics and community health.

On the other hand, to increase the feasibility of application, States have the right to make the law in a balance with the real situation and development level.

For the law-making body, the problem here is how to find a logical level in both content and operation, in which “the specific features of Vietnam” should not become a barrier for the nation and the whole people in the global race to reach the target “wealthy people, powerful country, equal, democratic and civilized society”.

During the law-making progress, aggressive nations did not mobilize weak points or subjective restrictions in their Government agencies as a “upper limit” for freedom and democracy rights of the people.

Democracy is a goal and a driving force for nation’s development. The State is of the people, for the people and by the people.Limitations on freedom or democratic rights, including RTI, should be made based on the following principle: “citizens may do all things that the Law has not prohibited; the State should only do things that the Law allows”. It is a true core of the democratic and socialist jurisdiction nation.

By September 2013, at least 95 States around the world have issued legal documents on information access. Nations which mention the right of information access in their Constitutions (including Vietnam) are 125.

It means that over 5.5 billion people are living under laws guaranteeing access to information, including the biggest population states like China, India and Russia, as well as most European nations, over half of nations in Latin America, nearly 20 nations in Asia-Pacific, 11 nations in Africa and three nations in the Middle East. 

Truong Trong Nghia lawyer  ( Translated by Anh Tuan )
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