THE EXERCISE OF THE LAW ON CITIZENS’ RIGHT TO ACCESS INFORMATION IN VIETNAM CURRENTLY

ABSTRACT

The right to access information is considered one of the fundamental human rights and depends significantly on implementing the law in each country. The paper presents some theoretical and practical issues as well as makes recommendations to ensure the exercise of the law on citizens’ right of access to information in Vietnam nowadays.

АННОТАЦИЯ

Право на доступ к информации считается одним из основных прав человека и в значительной степени зависит от соблюдения законодательства в каждой стране. В статье рассматриваются теоретические и практические вопросы, а также даны рекомендации по обеспечению исполнения закона о праве граждан на доступ к информации во Вьетнаме в настоящее время.

Keywords: The right to access information, citizens, law, the exercise of the law, and Vietnam.

Ключевые слова: право на доступ к информации, граждане, закон, исполнение закона, Вьетнам.

1. Some theoretical issues on implementing the law on citizens’ right to access information.

1.1. The concept, content, and role of the law on citizens’ right to access information.

The right of access to information belongs to everyone. However, there is no official definition of the right to access data until now. From a theoretical perspective on the subject’s rights, the right to access information is people’s ability to access information under particular methods permitted by law. According to the current Vietnamese law, citizens can exercise this right in two ways: freely accessing data disclosed by state agencies and requesting government bodies to provide information. Many countries in the world also offer these two methods. The State has promulgated a system of legal norms stipulating principles, order, procedures, and responsibilities of government bodies in ensuring the exercise of citizens’ right to access information. Although being free to access information held by the State and requesting the government agency to provide information are two different ways, they have a close relationship, helping implement the right to access information the best. The law on the right to access documents is the result of adjusting the law. It includes most of the government’s fields and activities. Therefore, it can be imagined that the law on citizens’ right to access information is a system of legal regulations promulgated by the State to regulate social relations arising in the implementation process of this right, promoting democracy, and enhancing the publicity, transparency, and accountability of government agencies.

Thus, the law on the right to access information includes a system of legal norms and is contained in many different legal documents. These documents are the legal bases for the subjects to exercise this right.

The law on citizens’ right to access information includes a normative group governing scope, principles determining the right to access information, duties, and powers of government bodies, publicity, orders and procedures for providing information upon request, responsibility for ensuring the exercise of this right, and penalties for violators.

The system of legal regulations on citizens’ right to access information exists in almost all types of legal documents in Vietnam from central to the local levels, such as Constitution 2013, Law on Access to Information 2016, Decree No. 13/2018/ND-CP on implementing the Law on Access to Information, Circular No. 46/2018/TT-BTC prescribing actual costs for printing, copying, taking photos, sending information, and other specialized legal documents.

The law on the right to access information institutionalizes the guidelines and policies of the Communist Party of Vietnam. It’s also a means to ensure the realization of citizens’ right to access to information, democracy, justice, equality, and social progress. Furthermore, it’s the legal basis for the publicity, transparency, and accountability for the organization and operation of public agencies and is a tool for controlling state power, preventing corruption, and developing sustainably.

1.2. Concepts and forms of the exercise of the law on citizens’ right to access information.

The legal norms on the right to access information will come into effect if they are implemented in practice and transformed into legal acts of the subjects, and rights and obligations of citizens, tasks and powers of state agencies are respected and secured through the exercise of the law. According to the theoretical point of view of the state and law, implementing the law on the right to access information is an actual, legal, deliberate act generated in realizing the legal provisions about this right.

Based on the popular approach to the theory of law implementation, the types of legal norms and the subjects exercising the law, implementing the law on the right to access information can be divided into four forms: Obeying the law, enforcing the law, using the law, and applying the law on citizens’ right to access information.

Firstly, compliance with the law on citizens’ right to access information is a form of the exercise of the law in which subjects do not conduct illegal activities. For example, people must not falsify the content of the provided data. Government agencies mustn’t provide false or incomplete information or delay the release of the news.

Secondly, enforcing the law on citizens’ right to access information is a method in which legal entities carry out activities required by law. For example, people requesting information must pay the actual costs to print, copy, photograph, and send it. State agencies shall disclose and provide information upon request.

Thirdly, using the law on citizens’ right to access information is a form in which legal subjects conduct activities permitted by law. In this case, people can or don’t need to exercise their right to access information. They are not subject to any liability. Government bodies and employees have rights provided for by law, and they are responsible for implementing them. If they perform improperly or inadequately, they are legally accountable, depending on the extent. On the other hand, using the law under their authority must follow the strict process prescribed by the law. State agencies, for example, may promulgate rules on access information under their jurisdiction or offer recommendations to other agencies on the publication, revision, supplement, and enhancement of such laws. The exercise of this right must comply with the order and procedures to protect the legitimate rights and interests of the State, organizations, and individuals.

Lastly, applying the law on citizens’ right to access information is a form used by competent entities, helping other legal subjects implement the provisions of the law, or make decisions that give rise to, change, suspend or terminate specific legal relations based on the provisions of law. Unlike the above forms, the application of the law on the right to access information is only performed by the competent subjects, and they are required to do it. For example, state agencies provide information at the request of citizens and make the news public. When applying the law, the subjects shall implement the law through forms such as compliance, enforcement, and use of the law. They must comply with one or more different legal norms. All law enforcement methods are closely linked to ensure the best exercise of the right to access information. Furthermore, it’s critical to notice that there is no distinction in terms of the four forms of law enforcement in the legal papers on citizens’ right to access information and in daily life [5, p. 19].

Subjects participating in legal relations on citizens’ right to access information are so diverse that they can be citizens, foreigners, stateless persons, officers, civil servants, party members, leaders of state agencies, state agencies, or other organizations. When implementing the law, they are always in a complementary relationship to ensure that the right to access information is effectively enforced. Because the law is a unified entity and law enforcement is a dynamic element, one form of legislation may involve or require other ones.

1.3. Roles and factors affecting the implementation of the law on citizens’ right to access information.

Besides promulgating a system of codes of conduct timely, reflecting reality, the State has carried out many activities so that the law can be thoroughly implemented in life. Based on the legal regulations on the right to access information, the legal subjects themselves perform certain acts to ensure the implementation of this right. Exercising the law on citizens’ right to access information will improve state entities’ visibility, transparency, and accountability. Moreover, the limitations and shortcomings of the law will be revealed. Thanks to that, the law can be perfected on time. It can be stated that the right to access information is the basis for the people to exercise other rights and protect the interests of the nation, the State, and other organizations. Therefore, implementing the law on the right to access information will promote democracy, ownership, and the self-governing role of the people. It also realizes social progress and justice and contributes to building and perfecting the socialist rule-of-law State, which is strict, firm, streamlined, efficient, serving civilians, and developing the country.

The exercise of the law on citizens’ right to access information is a legal act of subjects in an environment affected by many factors. It can be imagine that the law enforcement in this field is influenced by politics (the leadership role of party organizations and party members in the exercise of the law), economics (means, funding for communicating and educating the law, and other material conditions to bring the law into life), the capacity of State officers, quality of the legal system, and consciousness of legal subjects [2, p. 169-174]. Recognizing the above influencing factors eliminating negative ones and promote beneficial ones. From there, solutions to improve the quality and efficiency of the exercise of the law on citizens’ right to access information will be given.

2. The actual situation of the exercise of the law on citizens’ right to access information

2.1. The achievements

Firstly, it’s about implementing legal provisions on providing the information. State agencies have published internal rules on providing documents under their obligation and defined a category for receiving data and a list of data that must be disclosed. According to the internal regulations on giving information, the focal point providing the information is usually the offices. In addition, it defines the transfer of data of the info-generating unit to the focal point giving information and the classification of the information provided and not provided. Updating public information, documents supplied upon request, order, and procedures for handling requests for data between the focal point and the unit in charge of the information database and relevant departments is also clearly stated. Government bodies have actively provided information to the people, contributing to the realization of their right to access information. In the last time, news has been actively given in many different forms on platforms such as Zalo, Viber, key opinion leaders (KOLs), loudspeakers, and portable speakers. In particular, leaders of some localities such as Ho Chi Minh City, Hanoi City, or leaders of some government agencies like the Hanoi Department of Health, Health Department of Da Nang City have used communication tools to provide information for the people directly. This is a necessary action, creating civilians’ trust and promoting publicity, transparency, and accountability of state agencies.

Secondly, it’s about executing the requirements of the law on the right to access information. People have been proactive in accessing news and demanding data from state entities. Moreover, they actively go to the government agencies to obtain documents or exercise their right to access data via email or postal services. In some circumstances, the law has been utilized to sue some state authorities due to refusing to give information [1].

Lastly, it is the exercise of the law on obligations. State agencies have methodically and widely communicated the law on the right to access information. They have also received in-depth training courses about this sector. Furthermore, they have coordinated with socio-political organizations to disseminate the  Law on Access to Information 2016 to leaders, civil servants, officials, and people as soon as the document is approved. This process is be accomplished via face-to-face and online conferences, loudspeakers, and thematic papers. It’s also combined with popularizing and educating other documents and Acts.

2.2. Limitations and reasons

In addition to the above positions, the exercise of the law on citizens’ right to access information has the following shortcomings.

Firstly, state entities haven’t strictly followed regulations on the issuance of data upon request. Many units haven’t compiled and maintained a list of information that must be made available on their portals and websites. Furthermore, they haven’t publicized data about the information supply focal point, regulations, and procedures for posting the data of these units on their portals and websites. Some agencies haven’t responded to citizens’ requests for news. They even have no idea about the people’s right to request information as well as their responsibilities and behave inappropriately with the people asking for data [3, p. 12-13].

Secondly, citizens have not comprehended their right to access information, so they are still afraid to ask state agencies to provide the things they want. Especially, people living in rural and highly disadvantaged areas passively access information via meetings, minutes, conferences, and the loudspeaker system. Therefore, the timeliness, completeness, and accuracy of access to data haven’t met the demand.

Lastly, the regulation on monitoring, checking, supervising, complaining, and denouncing the enforcement of the right to access information is inappropriate. Besides, the Law on Access to Information hasn’t given an independent mechanism to control and handle violations during the implementation process. People are not willing to send complaints, denunciations, or lawsuits under current law due to the complexity of procedures. On the other hand, enforcing citizens’ right to access information is directly related to daily life. Therefore, it is indispensable to urge and resolve this issue timely.

There are many objective and subjective reasons leading to these situations. Regarding objective reasons, the law on citizens’ right to access information is inadequate, inconsistent, and lacks regulations binding the responsibilities of state agencies in providing information, doesn’t get an independent mechanism to monitor and handle violations. In addition, many current legal documents related to this right are not consistent with Article 3 of the Law on Access to Information, such as the Law on State Compensation Liability 2017, the Law on Land 2013, etc. Furthermore, information infrastructure is not guaranteed. Many commune-level People’s Committees haven’t had their websites and portals, or people with disabilities are not accessible to websites. Regarding subjective reasons, many officers and civil servants are unaware of and haven’t strictly implemented the law on the right to access information. Their capacity, expertise, and professions haven’t met the job requirements. Moreover, educating and communicating this law haven’t been effective, especially in remote areas with challenging socio-economic conditions and ethnic minority areas. Finally, the activities of inspecting, monitoring, and evaluating the results of the exercise of the law on the right to access information have not been conducted regularly. Sanctions haven’t been implemented to handle violations of law and rules caused by the head of the info-providing agency.

3. Some recommendations to ensure the exercise of the law on citizens’ right to access information.

The following measures should be adopted synchronously to ensure the application of the law on citizens’ right to access information in Vietnam:

Firstly, it is significant to continue developing and perfecting the law on citizens’ right to access information. Legal regulations should be displayed (except for the information that cannot be accessed and things that are not allowed). Besides, citizens have the right to do anything that is not prohibited by law. With this regulation, people will easily comply with the law. Moreover, there should be regulations on strict sanctions for info-providing agencies and state employees violating. In terms of formality, it is vital to review and remove overlapping rules and mobilize external resources to systematize the law on citizens’ right to access information, helping law enforcement entities search, perceive, and fulfill more efficiently and accurately.

Secondly, strengthening, renewing, and improving the quality of propaganda and education on the law on citizens’ right to access to information for state officials, party members, civil servants, and all social classes play an important role. For officers, party members, and state employees, the responsibility of providing information to the people should be emphasized. For people, using the form of using the law should be stressed. 

Thirdly, it is principal to promote the disabled, people living in border areas, islands, mountainous areas, and places with challenging socio-economic conditions to exercise the right to access information, like installing text-reading software and connecting to a sign language interpreting service. In addition, sign language training should be provided to those in charge of assisting the vulnerable in accessing information. Data should be given via social activities. Furthermore, members of social organizations should be encouraged to use the form of requests for information, which will motivate state agencies to make information public and respond to requests promptly.

Fourthly, it is fundamental to accelerate administrative reform, develop e-government, advance the connection and exchange of information among state institutions at all levels, as well as between the government and the public.

Fifthly, it is momentous to strengthen and enhance the supervisory role of the Party organizations, the National Assembly, the People’s Councils at all levels, the Vietnamese Fatherland Front, the member organizations, people, press agencies, and media in implementing the law on citizens’ right to access to information.

Sixthly, it is substantial to strictly handle all illegal acts caused by heads of state agencies on the right to access information.

Finally, it is required to harmonize the legislation on the right to access information between nations to make the laws united and linked, leading to the better exercise of this law, particularly for stateless individuals and foreigners. Harmonizing the law on the right to access information among ASEAN countries is also considered the best idea in the short term [4, p. 3-18].

References:

1. An interesting legal situation in the case of the right to access information. Url: https://plo.vn/phap-luat/tinh-huong-phap-ly-hay-trong-vu-kien-ve-quyen-tiep-can-thong-tin-1034526.html, accessed on 26/12/2021. 
2. Duong Van Quy. Factors affecting the exercise of the citizens’ to access to information in Vietnam today // Гуманитарный научный вестник. 2021. No (4). P. 169-174.
3. European Union - Center for Education Promotion and Empowerment of Women (CEPEW) - Vietnam Mining Coalition - Forest Land Coalition (FORLAND) - Clean Water Alliance (CWA) - Oxfam Vietnam - CARE International in Vietnam. Summary of Assessment Report on the exercise of the Law on Access to Information (Second), 2020. P. 12-13. 
4. Le Hong Hanh, Doan Trung Kien. Challenges in the process of legal harmonization in ASEAN from legal practice on human rights // Jurisprudence Journal. 2021. No (10). P. 3-18.
5. Nguyen Minh Doan, Nguyen Minh Duc Implementing, applying and interpreting the law in Vietnam. Hanoi: Truth National Political Publishing House, 2019.