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Wednesday, 19 June 2013 15:40
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A human rights - based approach in making and implementing policies in Vietnam

Human rights are universally agreed values of mankind, and recorded in the important legal documents of the United Nations. However, in reality, in policy making and law enforcement, the human rights-based approach has not been applied in a large number of countries, hindering the people from enjoying their legitimate rights.

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1. On the human rights-based approach

The human rights-based approach uses the criteria on human rights as a basis for defining expected results and uses the principles on human rights as a condition and framework for the process of achieving those results(1).

The use of the criteria and principles on human rights as the basis and target for activities is the goal to which the human rights-based approach is directing. Unlike other approaches, the human rights-based approach takes interest not only in achieving the set objectives, but also in the selected procedures and method for attaining them with the aim of supporting people to actively participate in development, not to be passive beneficiaries of the State’s policies. The human rights-based approach has basic contents as follow:

It uses the criteria and fundamental principles on human rights as a norm for guiding the process of devising and implementing policies and developing programs and projects. Because the criteria and principles on human rights reflect the most shared values acknowledged in the fundamental international treaties on human rights. Therefore, they will be the legal basis for building development goals and activities for achieving those goals.

It brings out the correlative relations between the subjects of the rights and the subjects responsible for their implementation. In principle, the State has main obligation in ensuring human rights for all people. However, in reality, for various reasons, there remain unrealized rights of individuals or certain social groups. Therefore, the rights-based approach emphasizes the determination of relations of rights and responsibilities among subjects and the role of individuals and social groups in their requirements for their rights to be satisfied; at the same time, it emphasizes the role of the concerned parties in the implementation of the rights of individuals and social groups without any discrimination…

It analyzes and assesses the capacities of the subject of rights and the subject who has the duty to implement them. For the subject of rights, the most important capacities include: capacity for perception, capacity for action and capacity for social status. The lack of one of these capacities will hinder her/him from the implementation of her/his rights. For the subject who has the duty to implement the rights, the most important capacities include: capacity for perception, organizational capacity, human ability (leaders, civil servants and employees), financial capacity, etc. Analyzing and assessing the capacities of the subject is the pivotal phase in defining capacities that either the subject of rights or the subjects who has the duty to implement the rights is lacking, hence, we can develop specific action strategies, propose measures for rectifying, supplementing and perfecting the capacities to help the subject well fulfill her/his rights and obligations.

The approach attaches attentions to vulnerable groups, especially the most disadvantageous group excluded from the development process. The goal of the rights-based approach is to ensure more rights for all people. That is also the requirement of advanced and social justice.

The approach attaches attentions to vulnerable groups, especially the most disadvantageous group excluded from the development process. The goal of the rights-based approach is to ensure more rights for all people. That is also the requirement of advanced and social justice. Therefore, certainly, it is aimed at the vulnerable groups and the most disadvantageous group in social life, including the poor, women, children, the disabled, HIV/AIDS infected people, etc. Thus, it is policy makers’ responsibility to “try their best to ensure the economic, social and cultural rights for the most disadvantageous people and ensure their participation in the decision making process”(2)

2.The human rights-based approach in making and implementing policies in Vietnam

In the cause of national renovation, our Party and State are more and more clearly aware that the development of the market economy and the construction of the rule of State should be attached to comprehensively ensuring human rights. As a member of the UN, Vietnam has joined almost all the most important international conventions on human rights*, and transferred their stipulations into the national law system. The principles on equality, non-discrimination, the participation and responsibility are a common thread running through many legal documents and policies of the State. Article 5 of the 1992 Constitution stipulates, “… The State implements the policy of equality, solidarity and mutual assistance among the nationalities; all discriminations and national separations are strictly prohibited”. The National Strategy on HIV/AIDS Prevention and Control towards 2010 and the 2020 Vision of the Government stipulates: “It is ensured that the current legal regulations related to HIV/AIDS infection should be considered from the angle of anti-discrimination and creating equality for those who run the risk of HIV infection and HIV/AIDS-infected persons”… Particularly, the recent amendments to the Criminal Code and Labor Code or the Law of Penalty for Administrative Violations of Vietnam, also demonstrate the above points of view.

The human rights-based approach in Vietnam is not only applied to the stipulation of the international conventions on human rights to policy making and promulgation of legal documents, but also applied to the process of law, or policy enforcement and supervision. The organization of communication and education on human rights in various forms has contributed to increasing the people’s awareness of human rights and sense of responsibility for safeguarding and promoting human rights of civil servants, party committee at all levels, governments, social and professional organizations. Moreover, the human rights-based approach was used in the analysis of the amendments of the 1992 Constitution, the policy of HIV/AIDS prevention and control and in the drafting of the Analysis Report on Vietnamese Children in 2010… These diversified activities have contributed to waking many social strata, leaders and managers of all levels, from the Center to localities, increase their awareness of the criteria and principles on human rights in international law, in the law and policies of Vietnam, being favorable conditions for using the rights-based approach in the law and policy making and implementation.

The human rights-based approach attaches much importance to the validity of institutions having the obligation to respect, implement and protect human rights. As a result, together with the communication and education on human rights, Vietnam has made many efforts in constructing and strengthening the institutions to realize the fundamental rights, including the rights of disadvantaged and vulnerable groups; they include operational reform of the National Assembly, the Government and the judiciary bodies.

For the operation of the National Assembly: Up to present, the human rights issues have deeply penetrated into the reform of the National Assembly of Vietnam, such as strengthening the Committees of the National Assembly and their standing Executives; strengthening the Council for Ethnic Affairs, increasing the deputies’ contacts with their constituencies; periodically considering reports of the Government, the People’s Supreme Court and the People’s Supreme Procuracy; supervising the implementation of large projects on socio-economic development, supervising important cases related to the claims on land, the environment, legal proceedings; discussing and approving draft laws and ordinances; interpellating members of the Cabinet; collecting people’s opinion on the bills and policies of the State, etc. These activities not only attract attention of nationwide voters, but also ensure the sound operation of government agencies, while restricting abuse of power and discovering shortcomings of the law system, policies and violations of people’s rights. A number of law drafts recently adopted by the National Assembly concern the rights of complaint and denunciation; the rights of women before and after maternity period; abolishing the regulations on sending sex workers to administrative surveillance centers, abolishing a number of articles of the Criminal Code (1999) on the death penalty, which shows that the criteria and principles on human rights keep being fully grasped by the National Assembly of Vietnam in its activities.

For the Government: According to Article 112 of the 1992 Constitution, the Government of the Socialist Republic of Vietnam has the following functions: to ensure the enforcement of the Constitution and laws in government agencies, economic organizations, social organizations, armed forces and among citizens; to take measures to defend the legal rights and interests of citizens, to create conditions for citizens to use their rights and fulfill their obligations; to implement the social, ethnic and religious policies. The government has an important legal position in the status apparatus of Vietnam. Activities of the Government and all levels of administration directly and frequently impact on all aspects of the life of the people. Thus, the Government is the subject who has an especially important obligation in protecting human rights.

The general assessment of the rights-based approach shows that many criteria and principles on human rights have been used in working out the goals as well as  in the implementation of the Development Programs of the Government, for example, the orientation for sustainable poverty alleviation for the 2011-2020 period, Resolution 80 of the Government (2011) applied the policies: supporting for vocational training for rural laborers, especially poor ones; exemption or reduction of tuition fees, provision of scholarships or social allowances for poor students at all levels; provision of health insurance cards for the poor, support for health insurance premium for those living close to the poverty line; intensified investment in upgrading clinics and medical stations in poor districts and communes to the accepted standards; support for the poor in rural and mountainous areas with housing; priorities to poor households having old or disabled members… These policies have created a legal environment and advantages for the rights subject and the obligation subject to enhance their awareness, develop their organizational and management capacities and well implement their rights and obligations respectively.

For the judicial agencies: The speeding up of the strategy of judicial reform in the past years has dynamically contributed to amending the system of criminal and civil laws to update them to the international criteria of human rights. The death and imprisonment penalties tend to be reduced, whereas the pecuniary penalty and forms of re-education without detaining tend to be increased. The forms of temporary detention are applied in some renovated ways: clarifying justification, restricting application of temporary detention to some categories of subjects, narrowing the category of subjects having the intermediary authority of decision. Especially, concerning the requirement for ensuring independence of the judicial agencies in defending justice and human rights, the State of Vietnam focuses on reforming the organization and trial of the courts: respects and strictly complies with the principles of litigation at trials, which is considered a breakthrough of the current judicial activities and those in the coming years. However, reality has also showed shortcomings in the activities of the judicial agencies at all stages: investigation, prosecution, detention, trial and execution of sentences. Many cases have been judged partially or inaccurately; the number of pending cases as well as verdicts is still large. As a result, a judicial reform is currently an urgent imperative for effectively struggling with all kinds of crimes and law-breaking in society and in the government agencies; restricting at maximum level the abuse of power, bureaucracy and corruption, enhancing the people’s awareness and faith in justice and the fundamental human rights.

The social organizations: There are now such social organizations as the Women’s Union, Youth Union, Federation of Labor, Federation of Lawyers, Association of Lawyers, Association of Patronage for Disabled Children, Association for Supporting Victims of Agent Orange, etc. These organizations have the obligation to defend the legal rights and interests for their members. Their role can be seen in various aspects: poverty eradication; meeting social demands; promoting gender equality; providing feedback on laws and policies; legal aid; maintaining sustainable development; promoting tolerance, democracy, non-violence, etc. Especially, a number of organizations, including the Vietnam Women’s Union, Vietnam Association of Lawyers, the organizations of HIV/AIDS-infected people pay attention to enhancing awareness of human rights, through researches, seminars and dissemination of the international and Vietnamese laws on human rights. Many activities are attached to policy campaigning, the struggle with discrimination against the vulnerable social groups, creating conditions for their members to associate, express their opinion, and develop their skills,… These show their desire to bring human rights into the law, policies, and activities of the government agencies, schools, businesses, communities and families. Judging from the human rights-based approach, the above-mentioned activities of the social organizations should be encouraged, facilitated and attended to develop their technical qualification, resources and legal status, and help them to well fulfill their obligation to protect human rights of the members.

Besides the achieved results, the application of the rights-based approach in law, policy making and enforcement in Vietnam faces a number of limitations and obstacles as follows:

Deficient on awareness: It’s easy to realize that the awareness of the human rights-based approach among the Party and the State’s agencies, socio-economic organizations and civil servants is limited in terms of knowledge and skills of analysis and application. The reason is that this is a new concept which has not been yet studied and widely popularized in Vietnam. In the system of party schools as well as some universities and institutes, for various reasons, the human rights-based approach has not yet been officially included in the curriculum and training programs on human rights. Moreover, the principles and criteria on human rights as a foundation for this concept have not been brought out in the training courses on human rights.

The existence of the old mechanism and its corollaries: One of unexpected corollaries of the need-based approach in the law and policy implementation in Vietnam over the previous years brought about the “ask - give” mechanism and has maintained in various fields. Ordinary people expect from and rely on the Party and the State. A section of cadres and civil servants abuse their power and show indifference and irresponsibility in their exercise of public service. There are many negative practices in mechanism of budget allocation and financial provision, and the approval of programs, leading to the utilization of the legal loopholes for exacting, embezzlement and squandering. That situation not only causes losses of resources that would serve the majority of people, but also is conducive to deviation from the policies and decline of people’s faith in the values of human rights. Any change of a conception or a method will have to face numerous challenges and obstacles. Moreover, the human rights-based approach can bring about changes in the way of devising and implementing laws and policies in the direction towards more transparency clarity, and highlighted accountability. Thus, it may encounter many obstacles from the groups with partial interests originating from the ask -  give mechanism.

A lack of readiness on the part of cadres and civil servants: The current mechanisms and policies in Vietnam do not yet encourage and create conditions for cadres and civil servants to readily use the modern, democratic, open and transparent methods of management. The patriarchal and small-peasant mindset, unclear allocation of work and responsibilities, having stable income in spite of lacking activeness make cadres and civil servants not ready for changes. The institutionalization of the people’s rights ensures that they can present requirements and demands and act as supervisors for law and policy implementation; supervising cadres and civil servants is a great difficulty with regard to their psychology, perception and behaviors. They are both obstacles and targets of the human rights-based approach. In order to overcome the mentioned difficulties, we should take various creative measures in accordance with real situations.

Some solutions to effective application of the human rights-based approach in the performance of public services

First, the contingent of cadres and civil servants should drastically innovate by themselves in the performance of public services to ensure human rights and civil rights are commensurate with the Constitution and laws. It is necessary to overcome, through training courses or self-study, the shortage of knowledge of the criteria and principles on human rights stipulated in the international and national laws. These criteria and principles not only orient the process of law and policy making and implementation, but also have legal and moral values for all activities of the government agencies and contingent of cadres and civil servants.

Second, it must be specifically classified whether or not the rights of people, such as the right of complaint and denunciation; the right of access to education and health care; the right of birth registration; the right to satisfactory living standard; the right not to be discriminated have penetrated into the operations of the agencies, cadres and civil servants. How these rights are met? Which capacities need to be enhanced so that the agencies, cadres and civil servants can fulfill their obligation as guarantors of human rights?

Third, it is necessary to frequently assess the impacts of the laws and policies on the people’s enjoyment of their rights; discover contradictions and shortcomings to put forward amendments to the laws and policies; to readily support reports and assessments that use the human rights-based approach.

Fourth, it is necessary to build a sense of responsibility, understanding and a cooperative working style towards people and social, professional organizations; to have plans of developing the main capacities to satisfy the rights of people in conformity with the Constitution and laws, with the requirement of building a democratic, equal and civilized society.

 

Dr. NGUYEN DUY SON - TRAN THI HOE, MA

Institute for the Study of Human Rights,

Ho Chi Minh National Academy of Politics and Public Administration

 

Further reading:

(1)See: http://www.un.org.vn (1)

(2) The Institute for the Study of Human Rights, Ho Chi Minh National Academy of Politics and Public Administration: The reference material of the International Human Rights Law, Political Theory Publishing House, Hanoi, 2005, p. 376.

* Up to October 2012, Vietnam has joined 10 important international conventions on human rights.

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