Nong Duc Tai, LL.M.[1], Pham Thi Lan Anh, LL.M.[2]
 |
| Free-of-charge health checkups for the elderly in Ho Chi Minh City__Photo: Dinh Hang/VNA |
According to global surveys, people aged 65 and older are less likely to become victims of crime compared to other age groups. However, when crimes do occur, the negative impacts on this group tend to be more severe. It is widely recognized that the elderly have received less attention compared to other vulnerable groups while the legal framework for protecting and guaranteeing the rights of the elderly remains incomplete and inconsistent.
International law on the elderly
It is a fact that the aging population worldwide has been a more heated issue than ever before, particularly with the interests of the elderly given top priority. Based on a recent report by the United Nations (UN) Population Agency, the number of people aged above 60 is expected to double and reach 2.1 billion by the year 2050[3]. Simultaneously, the increase in the quantity and rate of the elderly will be witnessed in all regions of the world, in which the undeveloped ones will experience this tendency from 11.5 percent to 20 percent (for the 2022-50 period) and the more developed ones will correspondingly increase from 26 percent to 34 percent during the period shown.
For instance, while there are treaties that protect the rights of women, children, and other disadvantaged groups, no binding treaty or convention specifically addresses the rights of older persons. Although efforts have been made to bring attention to this gap, such as the UN Principles for Older Persons (Resolution 46/91, December 16, 1991), which remains the most significant and straightforward UN document on the subject, these principles are non-binding and lack the force of a convention. Similarly, the Declaration on Older Persons, adopted by the General Assembly in 1992, offers guidance but is not a legally enforceable treaty. However, several key points below can be drawn from these legal provisions.
In the absence of a dedicated international legal instrument, older people remain vulnerable to age-based discrimination. For example, the Committee on Economic, Social, and Cultural Rights (CESCR) frequently emphasizes the need to protect older persons’ rights and urges member states to ensure equality for older women and men. To advance this cause, paragraph 2(h) of the Declaration on Older Persons calls for gender-neutral support for older people. However, the lack of a binding international convention leaves older persons’ rights less protected than those of other groups.
Regarding rights related to the freedom and security of older persons, Article 17 of the 1991 UN Principles for Older Persons stipulates that “Older persons should be able to live in dignity and security and be free of exploitation and physical or mental abuse”. This significant legal foundation mandates that member states include statements in their national legal documents stating that senior citizens must be allowed to work freely, exercise their right to free choice, and not be subjected to physical or psychological abuse.
When it comes to the rights to health care, due to age-related health decline, it can be deemed their most significant right, it is therefore imperative that this right be protected. Particularly in Article 10 of the UN Principles for Older Persons, they are reflected with Recommendations 1 thru 17 of the Vienna International Plan of Action on Aging, and Article 25 of the 2007 Convention on the Rights of Persons with Disabilities. One of the most important recommendations in international legal documents is that the elderly are taken care of by family.
These international agreements on the rights of the elderly, though mentioned in passing, are merely “soft law” and do not impose any legally binding responsibilities on member states. Among 133 nations surveyed by HelpAge International, only 41 have comprehensive and stringent legislation on prohibiting abuse and violence against the elderly. Over 80 percent of individuals reaching retirement age in low-income nations do not receive any subsidies.
Legally speaking, age is the primary criterion used to identify the elderly nowadays. Despite the fact that there are no universal criteria for defining the elderly for individual countries, the UN defines the elderly as “those aged 60 and over, divided into three groups: youngest-old (60-69 years old), middle-old (70-79 years old), and oldest-old (80 years old or older)”. In General Comment No. 6 of 1995 (on the Economic, Social, and Cultural Rights of Older Persons), the CESCR (the oversight body enforcing the 1966 International Covenant on Economic, Social and Cultural Rights) expresses a similar perspective. However, the International Labor Organization defines old age as 65 in Convention No. 128 of 1967 on disability payments, old-age benefits, and survivors’ benefits (Convention C128: Invalidity, Old-Age, and Survivors’ Benefits Convention, 1967).
Additionally, there are plenty of terms used nowadays to describe the elderly that are not universally understood across national boundaries, like “aging”, “the aged” and “older people”. As suggested by UN General Assembly Resolutions 47/5 and 48/98, the term “elderly person” is particularly recognized frequently. Nonetheless, compared to other vulnerable groups in society, such as women, children, and the disabled, the concept of the elderly has somewhat not received consensus because “the elderly are not a group” which is unlikely homogeneous like many other social groups. Even in Vietnam, the concept of the elderly is also regulated differently in specific laws.
Vietnam’s legislation on the elderly
The Party and the State of Vietnam have constantly paid much attention to the elderly. The 2013 Constitution states in Article 37.3 that “The elderly are respected, cared for and promoted by the State, family and society and promote their role in the cause of building and protecting the Fatherland”.[4] Simultaneously, the 2009 Law on the Elderly concretized the Constitution by devoting a whole chapter, Chapter II, to rules regarding the assistance and care for the aged. Other legal documents, such as the 1989 Law on People’s Health Protection (Article 41) and the 2014 Law on Marriage and Family (Article 71), also have specific rules and policies for the elderly.
More specifically, to ensure that the law is implemented as intended, the State has released numerous additional special rules pertaining to the protection and care of the elderly. These include: (i) Ministry of Finance Circular 21/2011/TT-BTC dated February 18, 2011, on management and primary health care for the elderly at their places of residence; longevity wish ceremonies; and praise and commendation for the elderly; (ii) Government Decree 136/2013/ND-CP dated October 21, 2013, on social support policies for social protection beneficiaries; (iii) Ministry of Finance Circular 127/2011/TT-BTC issued on September 9, 2011; (iv) Ministry of Culture, Sports and Tourism Circular 06/2012/TT-BVHTTDL of May 14, 2012; and (v) Government Decree 30/2012/ND-CP of April 12, 2012, on organization and operation of social funds and charitable funds, not to mention others. These policies have shown the State’s concern for the workforce, which has contributed to the growth of the nation and its citizens, while partially addressing social security demands of the aged.
Moreover, the National Program of Action on the Vietnamese Elderly for the 2012-20 period, issued together with Prime Minister Decision 1781/QD-TTg dated November 22, 2012, has witnessed various positive outcomes in recent years during the process of improving the law on the elderly. Local reports state that policies for the aged and the dissemination of the Law on the Elderly are carried out on a regular and ongoing basis. The majority of elderly residents in their communities receive social benefits on a monthly basis, and the community and organizations provide care for all old individuals who do not have family members or other caregivers who are legally required to do so. All senior citizens have had health insurance cards by 2020. However, there remain a lot of issues and restrictions with regard to policies for the aged. For example, full-time officials sometimes play multiple roles, and deducted taxes and fees for the elderly are not really practical. The elderly’s basic needs are not being met by social assistance standards, which remain low due to a lack of incentives. In order to further bring into play better policies for the elderly, the Prime Minister in 2021 released Decision 2156/QD-TTg approving the National Program of Action on the Elderly for the 2021-30 period.
The concept of the elderly still takes many distinct forms in the Vietnamese legal system. For instance, it was defined in the 2009 Law on the Elderly: “Elderly people are citizens of the Socialist Republic of Vietnam who are 60 years of age or older”. According to the 2019 Labor Code, “elderly worker” is defined as an individual who continues to work after the age of 60 for females or 62 for males. Three distinct concepts, “people 70 years of age or older”, “elderly people” and “people who are too old and weak” - all pertain to the elderly under the 2015 Penal Code. The Council of Judges of the Supreme People’s Court, in Resolution 01/2006/NQ-HDTP, dated May 12, 2006, established guidelines for the application of several provisions of the 1999 Penal Code, including the following definitions: “The elderly are defined as people 70 years of age or older” and “the very old and weak are people 70 years of age or older or people 60 years of age but often sick”.
Meanwhile, the 2015 Penal Code introduces a new definition for “persons 70 years of age or older” in comparison to the 1999 Penal Code. This idea appears not only in the laws governing aggravating and extenuating circumstances of criminal liability in Part One regarding General Provisions, but also in Part Two regarding Crimes, particularly in Article 301.2.c (Crime of hostage kidnapping). Furthermore, as previously indicated, the 2015 Penal Code lists “elderly and weak people” as a qualifying factor or an aggravating condition for a number of additional crimes. The goal of regulating these crimes is to safeguard the elderly, particularly in terms of their health, as they will have fewer physical resources and a higher risk of becoming victims of crime.
When the elderly are victims of crime, the collection of international legal documents recognizing their rights remains relatively limited compared to other vulnerable groups. Nevertheless, it is essential to acknowledge that older people possess comprehensive human rights, including the right to a fair trial, which must be upheld in criminal proceedings. At the same time, their health and age should be prioritized. Additionally, older individuals who share characteristics with other vulnerable groups, such as senior women or elderly people with disabilities, may benefit from overlapping protections. These principles can guide courts in determining appropriate penalties during judgment.
According to the 2015 Penal Code, elderly offenders are also subject to special rules designed to protect them from harm. The Code has several provisions that have certain “priorities” for the people aged 70 years or older, which always serve as a mitigating condition for criminal liability. Specifically, Article 36 states that community service work is not applicable to old and weak people currently in the period of non-custodial reform punishment. Furthermore, a new provision in the Code says that the death penalty, the most severe punishment, is no longer available to anyone who are aged 75 years or older. In certain exceptional circumstances, as stated in Article 64 of the Code, “a person who is too old and weak” is entitled to reduction of the time limit for serving a penalty. Article 66.1.dd of the Code also states that “a person aged 70 years or older” is the foundation for considering conditional early release.
Solutions for improvement of policies toward the elderly
In the author’s opinion, the following changes to the current legislation on the elderly are necessary to guarantee the best policies for older people.
Firstly, it is crucial to have a cohesive concept of “the elderly”. Because of this, even though the primary goal of the current Penal Code is to protect the elderly, it is vital to unify and explain the meaning in a clear and concise manner. International legal instruments now have taken advantage of age as a criterion for classifying someone as elderly. In certain modern nations, determining an elderly person’s age is based on this as well. As analyzed above, Vietnam’s legislation is not consistent when identifying the elderly. The idea that the elderly “are persons aged 60 or older, with physical impairments that cause them to encounter barriers when participating in social activities” can therefore be expanded upon. In particular, whether the elderly are classified as victims or subjects of crime under the 2015 Penal Code, it is required to harmonize the term “person aged over 70 years” in the legislation on senior protection. However, in order to maintain the legal system’s compatibility and the best protection of the rights of this category of persons, the Penal Code should take into account the age corresponding to the age specified for an elderly person in the Law on the Elderly. Furthermore, as stated when analyzing the elderly as victims of crime, the concepts of “people aged 70 years or older”, “old and weak people” and “very old and weak people” refer to the ones that have similarities stipulated in the Penal Code but there are differences between the laws as mentioned above, which might lack uniformity both in the application of law and in the legal system. As a result, there needs to be specific guiding documents or unified regulations in the Penal Code.
Secondly, there are no particular provisions expressly for elderly women under the current legislation, because the increase in the senior population or the trend of expanding the elderly population indicates physical obstacles. According to UN recommendations, the number of widows will rise since women typically live longer than men. Hence, policies and programs must especially target older women. According to researches, women in rural areas are often more affected than women in urban areas as they suffer isolation, poor transportation that makes travel difficult, unstable income, and a lack of appropriate health care services. Hence, more regulations or policies for this group are critical.
Thirdly, the Law on the Elderly of Vietnam should consider the issue of raising the retirement age. This is particularly relevant as many countries define the elderly as individuals aged 65 or older. Given the current trend of population aging, setting the threshold at 65 years or older aligns with demographic realities and helps ensure adequate social security entitlements for the elderly. Such adjustments can also serve as a basis for developing appropriate criminal policies tailored to this demographic issue. Additionally, the term “elderly” should be applied consistently across criminal law regulations. For instance, elderly individuals should not be subject to death penalty; crimes committed against the elderly should constitute an aggravating factor; and advanced age should be considered a mitigating circumstance for elderly offenders.
Last but not least, it is suggested to modify priority policies for the elderly, such as more customized medical treatment in each facility and locality. Furthermore, social security benefits might be increased in conformity with the proper age level of the elderly in order to meet the latters’s basic necessities and adapt to economic instability. As the elderly’s health is now improved, the Government should encourage them to participate in business activities through bank loans with low interest rates. Taking care of the elderly’s mental health is equally important. Internet technology can be utilized to care for and monitor the elderly who are at risk of facing health problems, etc.
In a nutshell, the elderly are regarded as one of the most vulnerable groups due to their physical traits and living conditions. They are vulnerable to abuse, mistreatment, and neglect. Because of their age, they can easily become dependent on others. Additionally, the elderly frequently experience physical and mental health issues. As a consequence, the State has to enact and increase regulations and laws so as to ensure a legal system that is strict enough to safeguard and guarantee the rights of the aged persons.-
[1] Faculty of Law, People’s Security Academy.
[2] Faculty of Law, People’s Security Academy.
[3] United Nations Population Agency (2022), Aging and health.
[4] National Assembly (2013), the 2013 Constitution of the Socialist Republic of Vietnam.
