Applying the Proportionality Principle to Rights-Restricting Law-Making in Vietnam: Institutional Reform in Light of the 14th National Party Congress

Abstract

Vietnam’s 14th National Party Congress and Politburo Resolution No. 66-NQ/TW call for law-making reform that keeps restrictions on rights reasonably balanced against the legitimate interests they pursue. Article 14(2) of the 2013 Constitution permits restrictions only by law and only where necessary for constitutionally specified purposes, yet it does not prescribe how that necessity should be demonstrated during policy formulation. This article examines whether the proportionality principle can serve as a structured framework of legal reasoning for this purpose. Using normative, doctrinal, and comparative legal analysis, it clarifies the four-stage proportionality test, the main scholarly criticisms of balancing, and the current Vietnamese framework for policy formulation, impact assessment, and policy appraisal. The article finds that Vietnamese law already contains important prerequisites but lacks a dedicated and consistent review sequence for rights-restricting policies. It proposes integrating a proportionality checklist into policy impact assessment reports and using the same framework in policy appraisal, legislative scrutiny, supervision, and the review of legal normative documents, thereby strengthening the duty of justification and the control of rights limitations.