ABSTRACT:
link w88 Constitution of Vietnamfully recognizes all human rights. However, most constitutional rights are not absolute and they can be limited on link w88 basis of national defense, national security, order, social security, social ethics and public health. link w88 authors, however, argue that link w88 rights need to be limited and conformed with acceptable international standards. This paper aims to illuminate link w88 principle of limitation onhuman rightsand justify those limitations as understood in Vietnam. This paper also presents expectations that Vietnamese scholars make when applying link w88 principle of limit rights to protect link w88 rights.
Keywords:limitation of human rights, human rights, link w88 Constitution of Vietnam.
1. Introduction
link w88 human society is faced with link w88 task of protecting link w88 fundamental right and freedom to achieve a democratic government based on human rights. It is recognized that link w88 enjoyment of one’s rights can infringe on link w88 rights of others, for example, between link w88 right to freedom of expression and link w88 rights to respect for privacy. Moreover, most rights rather reflect a balance between individual and community interests. It is also acknowledged that situations could arise in society or nations where link w88 enjoyment of rights can only be limited to a reasonable extent. As a result, most Constitutions assert that rights should be in no way absolute. States can limit link w88 exercise of these rights for valid reasons.
Different international human rights instruments follow different approaches to limitations on human rights. There are international treaties that set a general principle of limiting human rights such as link w88 Universal Declaration of Human Rights (UDHR) (Article 29) and link w88 International Covenant on Economic, Social and Cultural Rights (ICESCR) (Article 4). Interestingly, ICESCR generally integrates derogation of rights into provisions on rights limitations. And, International Covenant on Civil and Political Rights (ICCPR) indicates that limitations are provided for each article guaranteeing a right without a general limitation principle. However, others may include both general limitation principles as well as internal limitations; some others may not have an express limitation principle whether internal or general. link w88 absence of a general limitation principle may also be understood that states may limit link w88 rights without having to justify link w88 limitations link w88 absence of a general limitation principle may also be understood that states may be limit link w88 rights without having to justify link w88 limitations. Unlike derogation of rights is only applied in times of emergency which ‘threatens link w88 life of link w88 nation” (Article 4.1, ICCPR), limitation of rights is applied under given conditions that states have to meet when they wish to lawfully limit rights, which have to “be determined by law” and “necessary” or “necessary in a democratic society” (Article 29, UDHR).
In Vietnam, link w88 limitation on human rights is a new topic which started to be discussed during link w88 drafting of link w88 amendments in link w88 2013 Constitution. Previously, many Vietnamese constitutional scholars have already proposed adding content of limiting human rights to prevent abuse of state power in violation of human rights. Under link w88 2013 Constitution, new content relating to human rights limits is recorded in Article 14.2:“Human rights and citizens' rights may not be limited unless prescribed by a law solely in case of necessity for reasons of national defence, national security, social order and safety, social morality and community well-being”.However, link w88 2013 Constitution does not provide link w88 rights that cannot be limited (absolute right) and those subject to possible limitations (negotiable rights). This is a difference in comparison to link w88 Bill of Human Rights which stipulates absolute rights (Article 7,8,11,18, ICCPR), or link w88 Constitutions of certain countries which have specified rights that may be potentially absolute, namely link w88 rights to human dignity, link w88 right not to be tortured, link w88 right to a fair trial, etc.
With link w88 above provisions on link w88 limitation of rights, it clearly presents link w88 conception of Vietnamese constituents on link w88 nature of human rights and civil rights. Accordingly, human rights are natural, inherent, and not granted by another, but not all rights have absolute meaning and can be enjoyed absolutely in any circumstances. Since people live and exercise their rights in a community, their enjoyment of link w88 rights cannot be opposite to, exclude or infringe on link w88 rights of other individuals or link w88 benefits of link w88 community. link w88 State, in its functions, must respect and ensure human rights and civil rights, but at link w88 same time, it must ensure national security, social safety, and link w88 common interests of link w88 whole community. As a result, link w88 State has a dual role that creates a space for human freedom, but at link w88 same time limits this space to a certain extent.
In that spirit, link w88 principle of limiting rights also aims to respect, protect, and ensure human rights and civil rights. Therefore, before link w88 regulation of rights limitation, Article 14.1 has declared that"In link w88 Socialist Republic of Vietnam, human rights and citizens' rights in link w88 political, civil, economic, cultural and social fields shall be recognized, respected, protected and guaranteed in accordance with link w88 Constitution and laws”.
2. Contents of link w88 Principle of Limitation on Human rights under link w88 2013 Vietnam Constitution
link w88 principle of limiting rights is recognized in link w88 2013 Constitution in two forms: (1) general rules of limiting human rights and citizens’ rights; (2) stipulating some limitations on a few particular rights. Specifically, Article 14.2 link w88 Constitution stipulates a general principle: “Human rights and citizens’ rights may not be limited unless prescribed by solely in case of necessity for reasons of national defense, national security, social order and safety, social morality and community well-being.”. Besides, link w88 Constitution provides limitations on a few specific rights (as provided in Articles 30, 32, 54, 103) in accordance with link w88 characteristics of these rights. link w88 limitations on these specific rights are made in accordance with link w88 general principle stipulated in Article 14.2 of link w88 Constitution.
Article 14.2 of link w88 2013 Vietnam Constitution is considered to be link w88 rights limitation principle. It has two important aspects to be mentioned: (i) Human rights and citizens’ rights may only be prescribed by law; (ii) link w88 article provides link w88 circumstances under which human rights and citizens’ rights may be limited. Indeed, many Vietnamese scholars argued that link w88 existence of a limitation clause does not mean that these rights can be limited for any reason but can only be restricted for a justifiable reason.
- link w88 limitation must be by a law
link w88 first fundamental aspect of Article 14.2 is that human rights and citizen rights “shall not be limited unless prescribed by a law”.This condition requires that link w88 limit of link w88 right must have a clear legal basis, which must be: (i) link w88 codes and laws (referred commonly as laws) which are written by link w88 National Assembly; (ii) sufficiently precise to enable people to regulate behaviour; (iii) providing link w88 circumstances of rights limitation.
link w88 2013 Constitution does not define what a “law” is. This creates a danger of lack of uniformity in link w88 interpretation of link w88 rights and their limitations. One question arising via link w88 use of “law"under Article 14.2 is to what extent all legal documents adopted and promulgated by state agencies at all levels [3] – such as Decrees of link w88 Government, Resolutions of link w88 Justice Council of link w88 Supreme People’s Court, link w88 rules of a national body – apply to link w88 legal basis to limit rights. For some rights, link w88 conditions for link w88 exercise of these rights shall be prescribed bylawthat is known aslegislative documents.Examples are link w88 rights to free movement and residence (Article 23), link w88 right to freedom of speech and freedom of link w88 press, and link w88 right of access to information, link w88 right to assembly, link w88 right to association, and link w88 right to demonstrate (Article 25), and so on. This indicates that link w88 2013 Constitution has been successful in defining, exercising, and guaranteeing these rights. It is understood that link w88 exercise of link w88 rights stipulated in Articles 23 and 25 of link w88 2013 Constitution can be limited in accordance with link w88 law under Article 14.2 – as well as under other legal documents. Those include link w88 documents that are not issued by link w88 National Assembly such as non-statutory regulations, common law, and rules of a national body because they are all considered legislative documents. Regarding some other rights, their limitations are not stated in link w88 2013 Constitution provisions. However, rights such as link w88 right to privacy of personal information (Article 21.2), link w88 right to freedom of belief and religion (Article 24.1), link w88 right to vote in referenda organized by link w88 State (Article 29), link w88 right to work, and to choose their occupations, employment, and workplaces (Article 35), link w88 right to marry and divorce (Article 36), and so on are not absolute in nature. Those rights may be restricted by law, as inferred from Article 14.2. In this case, Article 14.2 shall apply as an additional term that is not included in other articles of link w88 2013 Constitution.
It is clear that link w88 word“law”is consistently present within link w88 2013 Constitution’s provisions on specific rights. These instances include: “Human life is protected by link w88 law” (Article 19); “link w88 arrest, holding in custody, or detention, of a person, shall be prescribed by a law” (Article 20.2); “link w88 search of homes shall be prescribed by a law” (Article 22.3), etc. Although local experts have made link w88 evaluation that using link w88 expression “prescribed by law” is too narrow and unfeasible [3, p. 4] if rights are limited only by legislative documents of link w88 National Assembly called "law." However, link w88 executive power is essentially just“enforcing”legislative acts on human rights. link w88 executive bodies may issue regulations on human rights, but this power means law enforcement. link w88 executive regulations are issued to enforce link w88 law, but not to extend or set new limitations on human rights stipulated in link w88 law. Logically, link w88 2013 Constitution should have a definition of “law”. It is therefore not clear if link w88 law includes only laws made by state legislative bodies, or it also includes regulations and directives made by link w88 state executive bodies, or even policies of link w88 State is also being sufficient to limit rights? There is absolutely no guideline in this regard. We also need to acknowledge that link w88 mechanism of judgment on restricting rights is more important than what legislative documents limit these rights. What we need to care about is how limiting link w88 rights under a law ensures proportionality, or otherwise, is constitutional [3, p. 6].
link w88 opinion of this article is link w88 2013 Constitutional requirement of limiting rights by law is in accordance with universal standards of human rights, and especially to meet practical requirements in Vietnam. link w88 limitation on rights by link w88 law is really necessary for link w88 practical context of Vietnam for four basic reasons: 1) for many years in Vietnam, link w88 situation of state agencies from central to local levels having abused arbitrary limitations on human rights; 2) common practice on link w88 promulgation of documents explaining and guiding laws and ordinances; 3) Vietnam has not granted link w88 courts link w88 authority to review link w88 constitutionality and legality of legal documents; 4) citizens do not have link w88 right to sue in court to ask link w88 court to review legal documents under link w88 law that violate their lawful rights and interests in accordance with link w88 Constitution and laws. Therefore, allowing link w88 limitation on rights by a number of “legal documents” will lead to link w88 continued existence of abuse of link w88 limitations of human rights.
- link w88 limitation of rights must be in case of necessity
link w88 second prerequisite is that link w88 measure of rights, limitation shall only be enacted“in case of necessity.”Article 14.2 provides link w88 circumstances under which link w88 rights enshrined in link w88 2013 Constitution may be limited. However, link w88 2013 Constitution does not provide link w88 rights that cannot be limited (absolute right) and those subject to possible limitation (negotiable rights). This is in contrast to link w88 Bill of Human Rights which stipulates absolute rights (Article 4 (2) ICCPR), that cannot be derogated from, even in times of emergency. It includes link w88 right to life, link w88 right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment, link w88 right not to be held in slavery or servitude, link w88 right not to be imprisoned for failure to perform contractual obligations, link w88 right not to be subject to retroactive criminal prosecutions, link w88 right to recognition as a person before link w88 law, and link w88 right to freedom of thought, conscience, and religion.
Article 14 (2) of link w88 2013 Constitution uses a method to list necessary types, including: “reasons of national defense, national security, social order and safety, social morality, and community well-being”. These types are basically consistent with link w88 common understanding of international law and other countries. However, they need to be explained and applied consistently. However, Vietnam still has not explained in detail about these types. link w88 constitutional interpretation is link w88 authority of link w88 Standing Committee of link w88 National Assembly, but has not used this right since its promulgation in link w88 2013 Constitution. Currently, only some of link w88 types are explained in link w88 law, such as link w88 national defense and security, which are regulated by link w88 2014 Law on National Security[1]and link w88 2018 Law on Defense. Unlike in other countries, Vietnamese courts do not have link w88 authority to interpret link w88 Constitution and laws in a formal way. It will be very interesting to see how link w88 Vietnam legislature will interpret this provision.
Noting that national defense and security issues are link w88 reason for most nations to create barriers and to restrict human rights, Vietnam is no exception. Vietnam law has link w88 concept of national defense and national security[2], link w88 same as in many countries. Interestingly, link w88 authority to limit human rights to protect subjects and for reasons referred to in Article 14 of link w88 2014 Law on National Security (e.g., Security protection, idealism and culture, ethnic solidarity, rights and legitimate interests of link w88 agency, organizations, and individuals) is fairly broad in comparison to link w88 international standard. This creates link w88 risk of abuse when link w88 limitation is imposed for national security reasons.
In addition to this, link w88 reasons for limiting human rights for link w88 sake of social morality and community well-being are not clearly defined in legal documents. Although link w88 Standing Committee of link w88 National Assembly has powers to interpret link w88 Constitution, laws, and ordinances, it has in fact never raised this issue. Vietnam’s approach to these reasons is generally understood to be link w88 same as that in many other countries. Specifically, link w88 reason for maintaining social order and safety is often understood in a narrow sense and seems to be associated only with struggle, prevention, and fight against crime.
It can be seen that link w88"necessity"creates large spaces for state agencies operate within their jurisdiction and is link w88 limit for regulations that aims to limit link w88 rights. Thus, in order to test link w88 validity, link w88 proportional method is of importance that cannot be ignored when formulating regulations on rights restriction because referring to link w88 limitation of rights is to reach link w88 balance and harmony of related benefits. This method has a certain flexibility so it can be adjusted in accordance with link w88 specific circumstances of each country. link w88 proportional method offers a four-step test that is consistently applied to all non-absolute rights. link w88 assurance test must be done from step 1 to step 4. If link w88 right restriction passes link w88 four stages, it is considered constitutional. If it fails at any stage, link w88 test stops without a further evaluation at a later stage, and as a result, link w88 restriction of that right is declared unconstitutional [3, p. 6]. This method has proven superior in many countries, but relatively new in Asia. Until now, only a few countries and territories in Asia have applied this method, for example, Korea, India, and Hong Kong. In Vietnam, this method is unfamiliar with link w88 theory of rights limitation. However, this method will be very valuable if it is applied for evaluation of link w88 issue of "necessity" in Vietnam in link w88 coming years.
link w88 phrase“in case of necessity”involves a conflict of interest between link w88 individual and link w88 state in a democratic society. This is inevitable because protecting this person's right is also link w88 limitation of link w88 freedom of others. link w88 State must persuade other entities (Courts) of link w88 existence of link w88 necessary circumstances which would permit link w88 state to interfere with link w88 enjoyment of link w88 rights. It should be noted that link w88 purpose of Article 14.2 is to assess link w88 issue of restricting human rights, but it is not link w88 only document focusing on this issue. Human rights can also be limited for broad reasons under Article 15.4 of link w88 2013 Constitution, which provides that“link w88 exercise of human rights and citizens' rights should not infringe upon national interests and others' lawful rights and interests.”Thus, link w88 reasons for limiting rights are to ensure link w88 legal rights of others and their legitimate interests.
3. Expectations on link w88 values of link w88 constitutional principle of limitation on human rights
Vietnamese scholars expect that link w88 constitutional recognition of link w88 principle of limitation of human rights will enhance link w88 constitutional protection of fundamental rights.
- link w88 principle of limitation on rights is to consolidate link w88 orientation to build link w88 rule-of-law State in Vietnam
link w88 text of link w88 1992 Constitution with many words expressing that citizens’ rights (at that time human rights were understood simultaneously as citizens’ rights) was issued by link w88 State instead of link w88 principle that link w88 State should respect natural rights [2]. Constitutional recognition requires an adequate explanation for any limitation on human and citizens’ rights. This is an important element of link w88 modern rule of link w88 law: transparency and accountability. After all, link w88 rule of law must uphold link w88 supremacy of link w88 law, so link w88 limitation on rights must ensure link w88 general requirement of link w88 spirit of link w88 rule of law which are justice, quality, fairness, and reasonability.
- link w88 principle of limitation on rights is a powerful tool to control state power
Constitutionalism is link w88 idea of a limited government [6]. Accordingly, human rights protection mechanism is one of three forms of state power limitation[3], and link w88 pillar of human rights protection is link w88 due process of law [5]. More specifically, link w88 limitation of rights must be regulated by link w88 law, which is aimed at limiting legislative power. Therefore, link w88 principle of limitation on rights requires link w88 legislative power not to promulgate laws that unreasonably limit fundamental rights (unconstitutional). For this reason, any restriction on human rights must be prescribed by a law.
Therefore, link w88 content of link w88 principle of limitation on rights in link w88 2013 Constitution is link w88 basis for limiting link w88 power of link w88 legislature and limits link w88 power of link w88 executive power when exercising“legislative delegation”by making a regulation. link w88 National Assembly and its Standing Committee declare legislative delegation with link w88 requirements in link w88 laws and ordinances.[4]Thus, if there is a legislative delegation for link w88 executive agencies to make a regulation, link w88 limitation of rights by link w88 regulation must also comply with link w88 Constitution and link w88 requirements stipulated in link w88 law and ordinances.
- link w88 principle of limitation on rights is an important basis to protect human rights
In Vietnam, constitutional rights are not directly exercised and protected. Constitutional rights are only exercised and protected when they are regulated by law and regulations. Section 2 Article 14 of link w88 2013 Constitution is applied to normative documents under link w88 Constitution, in order to ensure that link w88 exercise and protection of rights will not be arbitrarily “cropped” by link w88 law and regulations. In addition, link w88 limitation of rights is a mechanism to ensure link w88 achievement of legitimate of link w88 nation, but not taking away link w88 rights of link w88 individual. If a limitation derogates link w88 core or link w88 essential content of link w88 right[5], it becomes a constitutional infringement and not a limitation permitted under Section 2 Article 14. link w88 2013 Constitution provides that human rights therein enshrined belong to each individual and are not granted by link w88 state, not only that, link w88 rights themselves are granted by link w88 Constitution, therefore link w88 legislature cannot take away what does not belong to it, without link w88 permission of link w88 Constitution.
link w88 principle sets out link w88 requirements and responsibilities of state bodies in reviewing current legal documents that limit rights in accordance with Section 2 Article 14 of link w88 2013 Constitution so that link w88 legislative and regulative body is responsible for amending and abolishing unreasonable limitations. This makes great sense for link w88 protection of human rights and citizens’ rights in case of link w88 issue of regulations on law guidance.
- link w88 principle of limitation on rights is applicable in link w88 state of emergency
In a time of public emergency which threatens link w88 life of link w88 nation, States are allowed to derogate from their accepted human rights obligations (Article 4, ICCPR). It includes link w88 limitation of rights in a public emergency, but this limit will be stricter than ordinary rights limitations. While link w88 ICESCR generally integrates rights, limitation into provisions on derogation from rights (Article 4). However, link w88 limitation is fundamentally different from derogation. While rights limitation measures are typically adopted at any time and in given circumstances, derogation from rights is a type of rights limitation only in a state of emergency. Limitation to and derogation from human rights share some common features since both are link w88 justified restriction of human rights [1], such as States should comply with link w88 necessity and proportionality principles when they are limiting or derogating from link w88 rights.
However, link w88 2013 Constitution does not have a derogation clause, however, according to link w88 approach under Article 14.2 link w88 Vietnam Constitution, derogation of rights is a special case of limitation on rights. Because astate of emergencyis one of “in case of necessity”for reasons such as national security (in case of war) or health (in case of severe epidemics). Therefore, link w88 general limitation principle under Article 14.2 of link w88 2013 Vietnam Constitution gives States link w88 necessary latitude to respond to situations of emergency.
Conclusion.In fact, link w88 requirement of link w88 constitutional principle of limitation on human rights under Article 14.2 has not been fully and substantially implemented in link w88 recently issued laws and ordinances. In particular, link w88 reasons to limit rights had applied equally to all rights without distinction that each right has its own characteristics and limited reasons. In addition, laws recognize many exceptions or restrictions on human rights, and in most cases, these exceptions are very general, and very broadly empower agencies to intervene and limit human rights. For example, Law on Access to Information 2016 stipulates many exceptions on information provision, including exceptions for link w88 reasons of social ethics, work secrets, internal information. Or Law on Cyber Security 2018 provides a large number of measures of control over information on cyberspace to link w88 extent that it negatively affects link w88 exercise of information rights. According to a research report, link w88 principle of limitation of human rights under Article 14 (2) of link w88 Constitution has been applied but not yet bold [2]. It shows that, although is expected to play an important role in rights protection, link w88 principle of limitation of human rights has not made clear positive changes in ensuring and enforcing human rights. This problem results from link w88 absence of an effective constitutional enforcement mechanism.
One of link w88 requirements for limitation and control of power is that link w88 limitations on rights are only imposed in necessary circumstances prescribed by link w88 Constitution on link w88 basis of a democratic society. However, due to link w88 complexity of limiting human rights issues, Viet Nam needs to explain link w88 principle of limiting human rights in Article 14.2, followed by link w88 interpretation of international human rights treaties as well as link w88 general concept in link w88 constitutions of countries which have“proportionate to link w88 legitimate aim pursued.”. There will be a great challenge for Vietnamese public authorities in understanding and applying link w88 proportionality method, as it has a complex legal technical essence in theories and practice. Normally, this method will be interpreted and developed by link w88 courts. However, Vietnamese courts are not allowed to interpret link w88 Constitution and laws. Only link w88 Standing Committee has link w88 authority for legal interpretation, but it has rarely exercised this function.
link w88 problem of link w88 human rights restriction reflects a more general constitutional problem in Vietnam: link w88 birth of link w88 Constitution with many positive regulations is an important constitutional development, but link w88 implementation and enforcement of link w88 Constitution are still very limited. Therefore, link w88 constitutional reforms in link w88 coming years in Vietnam certainly need to focus on link w88 issue of Constitutional and legal enforcement.
BIBLIOGRAPHY:
[1]Law on National Defense 2018, art 2(1)
[2]Vietnam’s national security is often described with link w88 concept of “Fatherland protection” (Bao ve To quoc). According to Article 3(1) Law on National Security 2004, National security is link w88 stability and sustainable development of link w88 Socialist regime and link w88 Socialist Republic of Vietnam, link w88 inviolability of independent infringement, sovereignty, unity, territorial integrity of link w88 country.
[3]Three forms of limitation of state power: (i) limitation of power by organizational-technical structure; (ii) limiting power by link w88 authority of bodies and individuals representing state power; (iii) limiting power by protecting human rights
[4]According to Article 11 of link w88 Law on Promulgation of Legal Normative Documents 2015 “Legal Normative Documents must be specified so that when they are effective, they can be immediately implemented… they can be assigned to competent state agencies for specific regulation. Detailed documents only specify link w88 assigned content and must not repeat link w88 content of link w88 detailed documents.”
[5]link w88 concept of non-derogation from link w88 core or link w88 essential content of a right has its origin under Article 19 (2)“… In no case may link w88 essence of a basic right be affected” of link w88 Basic Law of link w88 Federal Republic of Germany, in which link w88 essential content of link w88 rights is shielded from link w88 effects of link w88 limitation.
REFERENCES:
1. Conte A and Burchill R Defining Civil and Political Rights: link w88 Jurisprudence of link w88 United Nations
Human Rights Committee (2009) at 43-51
2. Nguyễn Đăng Dung (2001), Cách tiếp cận hay là cách thức quy định nhân quyền trong Hiến pháp. Tạp chí Nghiên cứu Lập pháp, số 22/2011, tr. 45-46. [Nguyen Dang Dung (2001), ‘Approach or a way of regulating human rights in link w88 Constitution’, Journal of Legislative Studies, No.22, pp.45, 46;
3. Bùi Tiến Đạt (2015), “Hiến pháp hóa nguyên tắc giới hạn quyền con người: Cần nhưng chưa đủ”, Tạp Chí Nghiên cứu lập pháp Số 6 (286), kỳ 2 – Tháng 3/2015, tr.3-11. [Bui Tien Dat (2015), “To constitutionalize link w88 principle of limiting link w88 human rights: Need but not enough”, Journal of Legislative Studies, No 6 (286), pp.3-11.]
4. Bùi Tiến Đạt (2019), Kinh nghiệm nước ngoài về tiếp cận dựa trên quyền con người, quyền công dân trong hoạt động xây dựng pháp luật và hàm ý cho Việt Nam, Báo cáo nghiên cứu Đề tài Một số vấn đề lý luận và thực tiễn về tiếp cận dựa trên quyền con người, quyền công dân trong hoạt động xây dựng pháp luật tại Việt Nam hiện nay, Viện nghiên cứu lập pháp, Hà Nội. [Bui Tien Dat (2019), “Foreign experience on human rights-based approach in law-making activities and implications for Vietnam” (2019), in link w88 Research Project Report “Some Theoretical and Practical Issues on Human Rights-based Approach in Law-making Activities in Vietnam today”, Institue for Legislative Study under link w88 Standing Committee of National Assembly].
5. Bùi Tiến Đạt (2015), “Học thuyết trình tự công bằng và việc bảo vệ quyền con người: Kinh nghiệm quốc tế và Việt Nam”, Tạp chí Nghiên cứu lập pháp, số 11(291), tr.61-71. [Bui Tien Dat, (2015), “link w88 doctrine of due process and link w88 protection of human rights: International experience and Vietnam”, Journal of Legislative Studies, No.11(291), pp.61-71. ]
6. Russell Hardin, 'Constitutionalism' in Barry R. Weingast and Donald Wittman (eds). (2008). OHPE (Oxford University Press) 289.
Giới hạn quyền con người: Nguyên tắc hiến pháp và những kỳ vọng áp dụng trong việc bảo vệ quyền tại Việt Nam
Lê Quỳnh Mai - Bùi Trung Hiếu
TÓM TẮT:
Hiến pháp Việt Nam đã khẳng định quyền con người được công nhận, tôn trọng, bảo vệ, bảo đảm. Tuy nhiên, các quyền hiến định không tuyệt đối, các quyền này có thể bị giới hạn bởi luật vì lý do quốc phòng, an ninh quốc gia, trật tự, an toàn xã hội, đạo đức xã hội, sức khỏe của cộng đồng. Tác giả cho rằng giới hạn quyền là cần thiết và phải tuân theo các tiêu chuẩn nhân quyền quốc tế. Bài viết này nhằm làm rõ hơn nội dung nguyên tắc giới hạn quyền con người và những biện minh cho cách hiểu nguyên tắc này tại Việt Nam. Ngoài ra, bài viết phân tích những kỳ vọng mà các học giả Việt Nam đề cập khi áp dụng nguyên tắc giới hạn quyền để bảo vệ quyền.
Từ khóa:giới hạn quyền, quyền con người, Hiến pháp Việt Nam.
[Tạp chí Công Thương - Các kết quả nghiên cứu khoa học và ứng dụng công nghệ, Số 11, tháng 5 năm 2021]