making the constitution work for children in viet nam · pdf file · 2017-12-01help...

Making the Constitution work for children in Viet Nam:UNICEF Position Paper

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The amendment of the 1992 Constitution1 offers Viet Nam an

opportunity to strengthen the rule of law, promote human rights and enhance equality as well as socio-economic and political stability. While the current draft includes a number of significant and positive changes, UNICEF believes the current draft can be made more responsive to the needs of a third of the country’s population – its children.

1 Viet Nam’s constitution was first approved in 1946. The constitution was then amended several times (1959, 1980 and recently in 1992) to meet the new requirements of a changing socio-economic context.

UNICEF’s mission is to advocate for the protection of children’s rights, to help meet their basic needs and create opportunities to allow children to reach their full potential. UNICEF’s work is guided by the provisions and principles of the Convention on the Rights of the Child (CRC). UNICEF has extensive experience, globally and regionally, supporting countries to reflect the rights of children within their constitutions.

UNICEF strongly supports and has provided inputs into the “One UN Draft Commentary of Human Rights Provisions in Draft Amendments to the 1992 Constitution.” We support the arguments made, especially on the role of the State as the primary duty bearer

Making the Constitution work for children in Viet Nam UNICEF Position Paper

March 2013

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and incorporation of international laws into the draft constitutional text. This Position Paper complements the One UN Paper by providing a focused discussion in respect to the rights and interests of children, in line with the CRC and its Optional Protocols, which Viet Nam has ratified. This Position Paper aims to inform the discussions and decisions on the final shape of amendments to Viet Nam’s 1992 Constitution by articulating UNICEF’s concern for protecting and furthering child rights in this constitutional reform process. As a long-standing international child rights agency, UNICEF would like to offer some carefully considered suggestions that can improve the draft amended Constitution to ensure it takes into account international norms and standards on child rights ratified by Viet Nam.

Acknowledgement of public consultation and human rights

UNICEF highly appreciates the efforts of the National Assembly of Viet Nam to extend the public consultation process for amending the 1992 Constitution. The public consultation process is praiseworthy, as it reflects and supports

the good governance principles of participation and inclusion. The expansion of the on-going public consultation process to the end of September confirms the National Assembly’s commitment to listen to the voices of citizens in constitutional debates.

UNICEF applauds the recognition of human rights and children’s rights in the proposed amendments to the Constitution. By recognising that human rights are also children’s rights and noting the inclusion of specific provisions in relation to children, the proposed changes below reflect an important shift in the State’s perception of children from being seen as passive recipients of charity to the subjects of rights.

Why children’s rights should be included?

As Viet Nam has ratified several international conventions and treaties, including the CRC and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Viet Nam must fulfil its commitments in respect of children’s rights. Article 4 of the CRC requires State parties to “undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognised.” As such, the constitution of a country is central to setting appropriate standards and measures.

Children gather at a monthly children’s club with education and play activities such as singing, story telling, playing games and quiz show in Phu Tho commune, An Giang.

© UNICEF Viet Nam\2013\Truong Viet Hung


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Traditionally, the rights and interests of children in Viet Nam have been addressed or determined solely by adults in positions of power. Constitutional recognition provides a springboard from which to launch a concerted effort to change Viet Nam’s legal and policy frameworks, within which children’s rights are considered and respected at the legislative level. Constitutional recognition, therefore, is a critical element in the overall effort to build the foundations for children’s rights and accountability, which have in the past been lacking. Viet Nam’s legal system is currently undergoing an extensive review and amendment process. As a result, in the coming months and years, many laws, decrees and ordinances that are critical to children and the realisation of their rights will be drafted or amended. By appropriately enshrining children’s rights in the Constitution, Viet Nam will create an umbrella that will guide and protect the development and implementation of various laws and decrees and ensure coherence and compatibility of such norms with children’s rights.

Strengthening children’s rights in the Constitution

The new Constitution provides an opportunity for the Vietnamese people to enshrine in their supreme law the fundamental principles and values it holds in relation to children. In light of Viet Nam’s international obligations and international best practices in children’s rights, UNICEF encourages the National Assembly to consider the following ways in which children’s rights can be more strongly reflected in the Constitution:

1. The Constitution should define a ‘child’ as a person below the age of 18, in line with the Convention on the Rights

of the Child (Article 1, CRC). The two concepts of child (applied to people under 16 years old) and minor/juvenile (applied to people under 18 years old), currently used in Vietnamese legislation, cause significant confusion and result in different levels of protection for people under 18 years old. As a result, people between 16 and 18 years can be exposed to situations of vulnerability or harm, such as early marriage, lack of protection due to abuse, exploitation or violence. For this reason, the age of 18 is strongly recommended as the terminating line of child status, in line with international standards including the Optional Protocols to the CRC.

Unidentified girl from the Black H’mong Ethnic Minority People holding her baby on November 22, 2010 in Sapa, Vietnam. H’mong are the 8th largest ethnic group in Viet Nam

© UN Viet Nam\2010\Stephen Bures\Shutterstock.com

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2. The four guiding principles of the Convention on the Rights of the Child should be included in the Constitution. The guiding principles of the Convention are a) non-discrimination, b) adherence to the best interests of the child, c) the right to life, survival and development and d) respect for the views of the child. These four fundamental principles are mutually reinforcing and represent the underlying requirements for all children’s rights to be realised and provide a straightforward way for the Government to articulate its commitment to children’s rights.

Currently the draft amendments to the Constitution partially reflect the right to non-discrimination, the right to life, survival and development and children’s right to express their views. However, adherence to the best

interests of the child is not mentioned at all in the draft amended Constitution.

a. Non-discrimination (Article 2, CRC). As non-discrimination is already recognised (Articles 5, 17, 27, 38, 41 in the draft Constitution amendment), there may be value in considering whether more specific provisions should focus on a limited range of situations or categories of high exclusion. For example, given the high potential for exclusion resulting from disability, ethnic, or HIV status, the Government may consider special protection for specific groups of children. It should be emphasised that the application of the non-discrimination principle does not mean identical treatment and is on a case-by-case basis.


Community collaborator Nguyen Thi Bich Hanh, 26, provides support for families in her village at Phu Tho commune, An Giang. She is also deputy head of the village, monitors the situation of vulnerable families in her area and raises awareness of children’s needs. Hanh runs a monthly children’s club, with education and play activities for vulnerable children.


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b. The best interests of the child shall be a primary consideration in all actions concerning children (Article 3, CRC). This simply means that the ultimate goal in all actions concerning children is the “well-being” of the child, as defined by the rights articulated throughout the CRC. The important overarching principle, however, is not yet articulated in the draft amended Constitution. The existence of such a provision would provide a yardstick to guide the appropriateness of actions in favour of children. Therefore, embodying this as a constitutional right is essential.

c. The child’s inherent right to life and State parties’ obligation to ensure, to the maximum extent possible, the survival and development of the child (Article 6, CRC). The term “development” is read in a broad sense as a holistic concept, embracing the child’s physical, mental, spiritual, moral, psychological and social development. This principle covers a broad range of rights, including the right to education, health, adequate nutrition and protection from violence. Inherent in the principle is the important role of the family in the provision of basic services and the protection of children.

d. The child’s right to express his/her views freely in “all matters affecting the child,” those views being given due weight (Article 12, CRC). Given that the voting age in Viet Nam is set at above 18, there is all the more reason

to ensure respect for the views of un-enfranchised children. Given the general cultural and social limitations in Viet Nam for children’s views to be listened to, constitutions can give children a voice by including express provisions that require child participation in decisions that can impact on them.

3. In addition to these guiding principles of CRC, UNICEF considers some specific CRC rights to be particularly relevant to children in the Vietnamese context and the further improvement of the current constitutional draft in regard to these is suggested:

a. Educational rights: As already noted in the One UN Draft Commentary of Human Rights Provisions in Draft Amendments to the 1992 Constitution, we recommend the retention of the State obligations formerly in Article 59 of the 1992 Constitution to make primary education compulsory, free and available to all children. UNICEF recommends that all children, including ethnic minority children, have the right to learn in their mother tongue, especially at pre-primary and primary level, which was previously stipulated in the 1946 Constitution, Article 15.

UNICEF also recommends the following addition to Article 66 of the draft amendment to guide education: “The education of the child shall be directed to the development of the child’s talents, and mental and physical abilities to their fullest potential;

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the development of respect for human rights and fundamental freedoms; the development of the child’s cultural identify, language and values; and the preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons; and the development of respect for the natural environment” (Article 29, CRC).

b. Health rights: The current health-related article (new Article 41 in Draft Amendments to the 1992 Constitution) is limited in terms of the recognition of State obligations to the health of children (Article 24, CRC) to ensure universal coverage of, and equitable access to basic health services, including pre- and post-natal care services and to assure the provision of functional health insurance. Health rights for children might be emphasised by rephrasing the present draft text to, for example, provide that “everyone has the right to access and use of basic preventive and curative health; adequate food and nutrition, safe drinking water, sanitation and hygiene services to maintain his/her well-being and physical, emotional and intellectual development.” We should consider promoting equity in access to

quality health services for children and their families. Thus, priority should be given to healthcare programmes for highlanders and ethnic minorities, as mentioned in the current Constitution.

c. Rights of children with disabilities: According to CRC Article 23, children who have any kind of disability have the right to special care and support so they can live full and independent lives. UNICEF recommends that draft Article 66 specifically mentions the State’s obligation for the disabled to have opportunities to study, acquire proper knowledge and job skills.


Mong ethnic minority children enjoy learning by their mother tongue (Mong Language) at Lao Chai Primary School, Lao Chai Commune, Sa Pa, Lao Cai.


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d. Registration and Nationality: According to CRC Article 7, all children have the right to be registered and given a nationality. The current constitutional draft does not explicitely mention children’s rights to nationality, even as there is already a progressive law on nationality discussing birth registration and citizenship. Hence, enshrining existing good practice in such a fundamental matter by inclusion in the Constitution would be appropriate, such as through the insertion of a statement like “any child shall be registered immediately after birth and shall have the right from birth to a name and the right to acquire a nationality. The Socialist People’s Republic of Viet Nam shall ensure the implementation of these rights through national law.”

e. Juvenile justice: People below the age of 18 (recommended by CRC as children), who are accused of breaking the law have the right to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child assuming a constructive role in society (Article 40, CRC). We, therefore, recommend that the draft Article 32 be amended to include a provision ensuring that people below the age of 18 are entitled to age appropriate treatment throughout the justice

process, with a view to promoting their rehabilitation.

f. Right to rest and play: UNICEF also recommends the Constitution include the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts, and the State’s obligation to respect and promote the right (Article 31, CRC). Possible location of the inclusion: under Article 40 in the draft amendment.

For all of the foregoing rights, the role of the State should be seen as the primary duty bearer. In this sense, it is the obligation of the State to realise children’s rights by ensuring an enabling environment, providing sufficient protection and care services, and engaging all stakeholders such as families, schools and others, in protection and promotion of children’s rights. While some of these suggestions may seem narrowly focused, their inclusion in the new Constitution at the very least indicates a change in the perception of the child’s status in society, a willingness to give higher political priority to children and an increasing sensitivity to the impact of governance on children and their human rights.

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• Undertaking a further detailed analysis of Constitution revisions, taking into account international norms and standards as well as international best practices relating to child rights in constitutional practice. Technical consultation workshops could also be organised with key members of the Constitution drafting team to ensure these points of views are considered.

• While working with the One UN team on the UN joint position paper and in addition to this position paper, UNICEF will continue producing technical inputs with detailed suggestions on strengthening constitutional recognition of children’s rights. International child rights and constitutional drafting experts could be invited to provide inputs to the process and work with Constitution drafting team members.

• Facilitating discussions with children and young people on constitutional reforms by using social media and other forms of consultations. By building on the on-going work with young journalist clubs, other children and youth networks, UNICEF is keen to strengthen the participation of children in the constitutional amendment process.

• By working in the One UN context and in existing partnerships with various development partners and State agencies, UNICEF will seek opportunities to support and advance the constitutional reform process, especially in support of child-sensitive aspects.

UNICEF Viet NamAddress: 81A Tran Quoc Toan, Hoan Kiem, Ha Noi | Tel: +84 439425706 - 11 | Fax: +84 439425705Email: [email protected] | Website: http://www.unicef.org/vietnam

Cover photo: Group of happy children playing on meadow, sunset, summertime © UN Viet Nam\Zurijeta\Shutterstock.com

Further UNICEF Action

UNICEF supports the National Assembly’s decision to extend the public consultation process until the end of September. UNICEF believes this will offer citizens an excellent opportunity to give further feedback on how the Constitution could best work for them. Being a UN agency working on child rights issues, UNICEF has unique comparative advantages to make the process more inclusive and meaningful for children and their families. Below are some suggested further actions UNICEF would be pleased to support during the extended consultation process:

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