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Official Gazette

Sunday, August 25, 2019

A need to know

Updated: 15:54’ - 26/08/2009

National Assembly Resolution No. 27 assigned the Government to draft a Law on Access to Information. Recognizing the importance of guaranteeing the public right to information, the Government will introduce the law in this legislative session rather than adhere to the original plan to seek passage in 2011.

Nguyen Thi Hanh, LLM

The right to information (also referred to as the right to freedom of information or the right to access information) is a basic human right in the group of civil and political rights. The concept of the right to information first appeared in Sweden (1766) and was recognized in the two treaties which Vietnam has acceded to, namely the Human Rights Declaration of 1948 and the International Convention on Civil and Political Rights of 1966. These rights were later reaffirmed in the United Nations Convention Against Corruption, the Rio Declaration on Environment and Development and the UNECE Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. More inter-national agreements and conventions, action plans and declarations have been adopted urging nations to pass laws on freedom of information. The number of countries recognizing the right to access information as a human right which is crucial for improving administrative capacity, increasing transparency and fighting corruption is also on the rise.

In Vietnam, the 1992 Constitution stipulates that the right to information is a basic right of citizens: “Citizens… have the right to information… as prescribed by law” (Article 69). This right has been asserted in various Party guidelines and policies. Most recently, the resolution of the 3rd plenum of the Party Central Committee (Xth Congress) on enhancing Party leadership over the prevention of and battle against corruption and waste set forth the task of promulgating a law to secure the right of citizens to information as a measure against corruption.

To realize the Constitution, implement Party guidelines and incorporate the provisions of treaties to which Vietnam is a contracting party into domestic law, many legal documents concerning the right to information and responsibilities of state agencies for providing information held by them (information on the environment, planning, construction, land, investment projects, food hygiene and safety, budget spending, etc.) have been issued. They include the Law Against Corruption, the Construction Law, the Investment Law, the Land Law, the Law on Promulgation of Legal Documents, the Law on Promulgation of Legal Documents of People’s Councils and People’s Committees, the Budget Law, the Ordinance on Exercise of Democracy in communes, wards and townships, and guiding documents.

Nevertheless, studies showed that the institutionalization and realization of the right to information into laws and regulations remains slow and unsystematic, failing to cover all aspects of life. Due to the lack of a specific legal mechanism to secure the effective exercise of this right, the exercise of this right by citizens is limited. Most current legal documents define the responsibility of state agencies to provide information and stipulate the right to information in general terms. State agencies are allowed to decide by themselves on the provision of information under their management. As a result, each agency and each area has issued different regulations on the method and process of providing information.

The current legal system lacks provisions on types of information to be published, posted on websites and provided upon request, reasons for refusing to provide information and the process of requesting and providing information. The responsibility of state agencies to provide information has not yet been specified, such as which information they are obliged to publish, which information they provide only on request and which information they have no duty to provide. This has resulted in the situation that some officials have been in the habit of keeping confidential information they hold to ensure “safety” for themselves, or use such information for self-seeking purposes, or are unsure whether they have the duty to provide information. The listing of information to be published by agencies and organizations in specialized laws is necessary but cannot cover all areas of operation of state agencies.

In reality, the provision of information still depends on the subjective willingness of state officials. The sharing of information remains very limited within the system of state agencies. State officials are inclined to avoid risk and control information. Some lack awareness and goodwill in performing the duty of providing information. Access to information held by state agencies is difficult, as obviously seen in the fields of land, relocation compensation, investment projects, credit access and disaster relief.

Due to the absence of specific regulations on the responsibility of state agencies for publishing information, holders of working posts with easy access to information often take advantage of such access for their own profit, causing inequality in society, especially in the fields of business and investment. Limited transparency and publicity in state administrative work has restricted the supervision by organizations and citizens of state administrative activities. To date, there is no mechanism for people to effectively protect their legitimate rights and interests.

A Law on Access to Information aims, on one hand, to establish a clear and effective legal mechanism for securing the constitutional right of citizens and institutionalizing Party viewpoints and guidelines on the right to information. On the other hand, it will materialize Vietnam’s international commitments on making state agencies’ operations transparent and consistent with international law, reflecting Vietnam’s efforts on the path of international economic integration.

The promulgation of the Law on Access to Information aims to achieve the following specific objectives:

- To secure the right of agencies, organizations and individuals to information to protect their rights and interests; create opportunities for all citizens to participate in supervising state administrative activities and commenting on policymaking and administrative actions of state agencies;

- To ensure publicity, transparency and accountability of state agencies, contributing to reducing corruption;

- To increase the quality and effectiveness of state agencies;

- To enhance democracy, equality and cooperation between the people and State and improve the relations between the State and citizens; and,

- To build up public confidence in state agencies.

The above objectives cannot be achieved without promulgation of the Law, and any other measures, or simply revising existing laws concerning the publication of information, would be inadequate.

Through mechanisms to secure the right to access information, an effective system of public supervision of the operations of state agencies would be formed. Feedback from the people would help state agencies consider, select and make proper decisions in response to public aspirations, thus increasing the effectiveness of state administration. State agencies would work more effectively and responsibly. Transparency in the operations of state agencies would make examination, inspection and supervision more effective and contribute to reducing corruption.

Easy access to information would reduce costs for the public and businesses as well as production and business risks posed by mistakes and uncertainties about related legal obligations. In sharing information, organizations and individuals may use research and investigation findings of other agencies, organizations and individuals to save social resources. Increased access to information would help the people improve their awareness and knowledge and material and spiritual lives.

Access to information would also help domestic and foreign investors make long-term investment plans and believe in their business plans. This is a precondition for increasing foreign direct investment in Vietnam because foreign investment relies mostly on stability, transparency and market information. At the same time, increased access to information would reduce unfair competition among businesses. When the right to access information is secured, enterprises can minimize their business costs and investment risks, increase their turnover and create more jobs, contributing to faster economic growth.

Securing the right of citizens to access information would contribute to increasing the people’s confidence in state agencies. With all necessary sources of information, the public could play a more active role in society and in building and perfecting policies and laws.

In ensuring the exercise of this basic right of citizens, the Law would change the relationship between the State and citizens, giving citizens the capacity to participate in a more substantial manner in state administration, and enhancing democracy and creating social consensus and stability as a basis for economic growth.

For these reasons, the Law on Access to Information will cover all matters guaranteeing the people’s right to information. It will supplement existing laws by providing for the process and procedures for accessing information, especially information which is restricted from publication but must be provided upon request. Apart from concretizing the provisions of the Constitution and Party and State policies, the promulgation of the Law will ensure Vietnam’s realization of international commitments, compatibility and conformity with international practice and the right to freedom of information.-

VNL_KH1 

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