Protecting the Core of Constitutional Rights in Vietnam: Proportionality, Administrative Discretion, and Judicial Safeguards

Abstract

Vietnam’s 2013 Constitution establishes a general framework for restricting constitutional rights, but the relationship among the protected core of a right, administrative discretion, proportionality, and judicial control remains insufficiently articulated. This article asks how Vietnamese law should distinguish administrative interferences that merely limit a constitutional right from those that negate its protected core, and what safeguards should govern each category. It develops a doctrinal framework combining the bifurcated model of rights with proportionality analysis and procedural and judicial safeguards. Drawing on Vietnamese constitutional and administrative law, international human rights interpretive materials, and purposively selected administrative judgments, the article argues that interferences which negate the underlying purpose of a right should not be justified through ordinary policy balancing. Restrictions outside that core must satisfy legality, legitimate purpose, rational connection, necessity, and proportionality, while remaining subject to fair administrative procedure and effective judicial review. The article proposes a differentiated safeguards model that preserves legitimate administrative discretion by calibrating justification and procedure to the severity of interferences within the right’s periphery, while treating negation of the protected core as a distinct threshold.