Abstract:  Viet Nam is one of the countries approving the International Convention on the rights of the child from the very beginning. This is the most important document involving human rights for children under the international legal system of human rights, including: children have the right to have their voices heard; to have their thoughts solicited and taken into account and to have freedom of expression their views on matters that affect them; freedom of thought, association and access to information; bringing benefits and enhancing personal development; to have equal rights to participation without discrimination; Children have the right to be protected from violence, exploitation and abuse. In the Vietnamese legal system, the participation rights of the child can apply to citizenship in general, such as human transaction rights, moral rights, marriage and family relations, speech and access to information, peaceful assembly and association, criminal procedure, handling of administrative violations, complaints and denunciations, etc.

1. Background

Although the International Convention on the right of children does not mention specifically about “Participation right” at any singular article, the rights are regulated in some Article group of Convention such as “the Article of participation”. The rights among this group are: Right to present opinion, the Right to be listened (Article 12); Right to access information and free to manifest opinion (Article 13): Personal Right (Article 16); Right to freedom of association and assembly (Article 15); Right to freedom of belief and religion (Article 14).

International Convention on the Right of Children encourages every child to join and provides necessary support to enhance this. The International convention on Child

Right has brought a fresh look at children as changeable factors. Despite the fact that children are “vulnerable people who need protection and support form family, society and Government” , every single child can “form and present opinion, join in making decision process and influence on solution, play a partner role in changing and developing democracy society” . However, people around children, who typically are parents or guardians, careers and teachers, should guarantee that the participation is promoted by the way excluding negative effects on children’s benefit and development.

There are numerous reasons that make the child’s participation become important. First of all, the participation of children improve the making decision process of organizations and Government. Their participation ensure that these decisions satisfy true needs and concerns from children , as to be regarded by them own not adult’s suggestions. Children have different concerns, demands and hopes against adult, they may be unable to create influences on decisions unless there are efforts to facilitate them to do so. Furthermore, the participation of children can contribute the opinion through their direct experiences in some typical situation. The participation also brings more benefits to special groups like neglected children and poor children, they can use this as mean to raise their voice in society. In additionally, children’s participation records the perception change from children as “beneficiaries” of interference of adult to the respected rule “children also have rights”. Simultaneously, by joining, children have a chance to live in society as dynamic citizens contribute in changing the power relationship between adult and child.

Within groups of rights regulated in the Conventions, groups of rights including survivor, development, protection showed the passive protection for rights of children by naming the list of all rights and  responsibilities of family, government and society in executing above children rights. In contrast,  the group of participation right had much more clearly shown that children have participation right and right to make their own decision in development process; children’s participation take an important part of social life not just beneficiaries who purely need pity, aid and charity. This point was considered as the significant highlight of Convention, apparently showed the Convention’s success in connecting civil and political right with social-economic and cultural right.

Participation right is an open concept with various explanations. It used to be explained commonly as participation of human in the process of making decision, which may affect their personal life, or even whole society where they are living. Under this term, many angles have been approached, participation right of children included plenty of different activities correlated to the development of children at stages of age: expression of wishes, development and presentation of perceptions, consultation for advices during making decision process, organizing, establishing and joining associations, search and access to information, etc.

To determine precisely which the best benefit is for children, the important thing is that children must have right to express their opinions and to be listened. When they are grown up and more mature, more right they should have in making influences and decision directly. The actual participation of children in making decision is necessary to determine what benefit is the best for them, the lack of children’s opinion may lead to subjective conclusion toward incorrect direction with bad result for children.

2. Children’s participation right in International convention and issues rising for Member Countries.

When approving the Convention, member countries compromised that recognized children’s right in Convention will be executed by all means. Member countries do not only guarantee in legal side but also have specific solutions about mechanism, policy to make above regulations come true.

About law, member countries have to develop a legal system to children’s right, which consists of participation right, this system should be compatible with the spirit and content of Convention. In additionally, beside of recognizing children’s participation right in all relevant fields, the State also must identify clearly the suitable scope and level of opinion contribution to their age within the fields. The Government has to develop receiving and reviewing mechanism for children’s opinion, such as: the State can exploit the collection channel of appropriate ideas that delivery high representativeness for any corresponded gender, age , ethnic , social class, religion and geographic location.

Listening to children is not just simply about to confirm children’s opinion, moreover, children need to be allowed to learn constructive method associated with influencing the world around. Because junior can hardly participate effectively in a limited environment, only a few have the opportunity to join in meaningful activities of social life. Therefore, apart from the recognition of the right to freedom of association, and assembly of children as civil rights, the State must have policy to support the establishment of organizations, which help maximize the participation of juniors in a democratic manner. This would allow juniors to develop essential skills in social life, to enhance confidence, providing the fundamental space for them to participate actively in the social life.

One of the obligations of the member states is to universalize broadly the Convention for all social classes under many different forms and through the mass media. About this angle, the mass media have an important role in motivating conditions for children to fully acknowledge their rights and help them to develop habit in practicing these rights during their present and future life. Children do not only have right to information access but also should be involved in creating such information. It needs of positive efforts to promote this participation in a right manner, this include the training for children and reforming the information center into a friendlier environment for children. Therefore, the State with its special position in society, firstly, has responsibility to drive the diversified development of mass media toward positive way for children’s development including child targeted among different ethnic groups. On the other hand, the State has the mission to prevent children from accessing harmful information and materials.

Although the regulations on children’s participation right in the Convention were only a reaffirmation of civil, political rights, which had been defined in many other international documents on human rights but the reaffirmation of participation right in the convention for children is an important step towards confirming the position and the importance of ensuring the real development of children – the future world masters. Ensuring implementation of children’s rights to participation obviously depends on many factors such as: the ability of the children themselves, proper awareness of adults, parents, society and community. Among those, the most significant thing ever is the responsibility of member countries implementing Convention in establishing the legal base and the necessary policies to promote the realization of children’s right to participation. Thus, it is necessary to have effort and cooperation of the entire society for enhancing the children’s right to narrow the gap between the recognition and actual implementation about the rights of children in general and participation rights of children in particular.

3. Participation right of children in Viet Nam’s law

Viet Nam’s Party and Government has always considered human as the goal as well as the motivation for the cause of national development. Viet Nam’s government  stated that human, including children always is the center of economic – social policies , and to promote and protect human rights in general and children’s rights in particular is an important factor for decent development,  and ensuring the success of the country’s renovation. All the guidelines, policies and Strategies of Vietnam are aiming at the goal: “rich people, strong nation, equitable, democratic and civilized society “, all because of human and dedicate for human.

Viet Nam plans to develop a Rule of Law Government of the people, by the people and for the people. Vietnam’s State implements the motto: “people know, people discuss, people do, and people supervise”; people are the person who decide everything for State. As a result, both position and the role of people in general and children in particular have positive movements to clarify clearly the country ownership.

With respect to children as young citizens, they do not only have full basic human rights to economy, politic, society and culture…etc. but also are happiness of family, country’s future. Thus, children are deserved to be loved, be concerned, be cared, be educated, be guaranteed full human rights, be respected and believed on ability of opinion contribution in present and future by Party, State and entire society.

Viet Nam is the first Asian country and the second nation in the world has signed and approved international Convention on Children’s right. On the condition that average income is still low, Viet Nam is always working on the agreement so keenly through international cooperation to improve children’s welfare. Despite harsh challenges, but with constant effort as well as great achievement in economic – social – cultural development, during the last decade, Viet Nam has accomplished many positive results with significant effectiveness in promoting standard life of children and for the cause of child protection, caring and education.

According to general viewpoint about protecting children’s right – the future country’s holder, position and the role of children in social life is not only ensured via regulations on human rights for all citizens but also ensured by particular regulations on child.

The 1992 Constitution (with adjustment and supplement in 2013), as a fundamental law with the highest effects in the Vietnamese legal system, had demonstrated the institutionalization of perspectives of human rights protection in general, including the right to participation of people in the social life. It asserted that “…the human rights such as political and social rights are respected and  embodied in the civil rights and has been stipulated in the constitution and laws”; “citizens have the right to participation in the social and State management and to discussion about the issues of the whole country and localities and recommendation to the state bodies…”; “the State shall facilitate citizen to participate in social and State management; the receipt and response to citizens’ opinions and recommendation shall be public and transparent…”; (Article 28, the 1992 Constitution and the adjusted, supplemented 2013 Constitution).

Based on rights in the Constitution, the children’s right to participation as a citizen – were reflected in other documents such as Civil Code 2005, Civil Procedure Code 2004, Criminal Procedure Code 2003, Ordinance on Handling Administrative Violations 2002, etc. Remarkably, this right was prescribed in Law on Child Protection, Care and Education 2004 – which was exclusively designed for children. Clause 1 Article 20 of this law stipulated that “Children have the right to information access associated with their development, expression of their opinions and aspirations to the matters of their concern.”

These documents have created an important legal basis for not only affirming the role of children in the society but also supporting the families, relevant agencies, organizations and the State to act suitably and issue policies associated with child’s demands, aspirations and benefits.

4. Responsibilities to ensure the participation right of children

In Vietnam, the child protection, care and education is always regarded as a matter of great importance to the country development. The Party and government determine that the children without any discrimination based on gender, ethnicity, religion, belief, background, social status, their parents or guardian’s opinion, have the same social skills to strive to become useful citizens of the society and have the same civil rights and obligations. That means the law affirms responsibilities of the State, the family and the whole society in guaranteeing the implementation of children’s rights along with the recognition of their rights, including the participation right. Article 56 of the 1992 Constitution asserted that “The State, society and families are responsible for the protection, care and education of children” and Article 40 “The State, society, families and all citizens have the obligation to give protection and care to mothers and children.”

In terms of responsibilities to ensure the child’s right to participation, Article 32 of Law on Child Protection, Care and Education stipulated “the families, State and society are responsible for facilitating children to access appropriate information, develop their creative thinking and express their aspirations; and listening to and dealing with their legitimate aspirations.”

Responsibilities of the family

The family is a natural environment for the development and well-being of children and plays a crucial part in shaping the personality of future citizens. All decisions of the parents have direct effects on children as they are made and on children’s understanding of listening to other people and how to deal with conflicts of interest. Thus, educational methods adopted by the family play an important role in shaping the personality of children. United Nations always encourages parents and their children to solve problems related to children’s rights “…appropriate to capacities of the child…” (Article 5 of the International Convention).

Law on Child Protection, Care and Education 2004 defined general principles concerning the prohibition of violence against children and the provisions of prohibited violent acts. Clause 2 Article 6 stipulated “All acts of infringing upon children’s rights and causing harms to the normal development of children shall be severely punished by law”, stepfathers or stepmothers must not ill-treated, persecute or hurt the stepchildren (Clause 2 Article 34, Clause 3 Article 38 of the Marriage and Family Law).

In case parents have the acts of violence against children, based on the seriousness of violations, the father and/or mother shall be restricted rights, be sanctioned administrative violations and be disciplined or examined for penal liability under provisions of Penal Code (Article 26, Decree No. 49/CP dated May 18, 1996 of the government on sanctions against administrative violations in the field of order and security, Decree No. 87/2001/ND-CP dated November 21, 2001 on sanctions against administrative violations in the field of marriage and family, Penal Code in 1999 with Articles 93, 94, 95, 96, 97, 100, 103, 104, 105, 106, 107, 110, 151, 298, 299….), providing for the crimes of infringing upon the life, health of the people, acts of violating the marriage and family regime and direct or indirect judiciary activities involved the physical child abuse.

Therefore, the Vietnamese law provides for relatively full responsibilities of parents to ensure children’s rights in general and the participation right in particular. However, the law makers seem to be confused to define the boundary between educational methods adopted by the family and prohibited forms. A fact shows the child participation in the family and society has been still heavily influenced by East Asian cultural traditions as opinions of senior people or “the elder” are considered to be “supreme” and always bring good things to junior people and especially children, children must comply with. The project of child abuse conducted by the Youth Research Institute of Ho Chi Minh Communist Youth Union referred to parents’ punishment on children, showing that Vietnamese children are always punished before being allowed to present causes of the incidents (72.4%). Nearly 10% are punished without any explanation (9.5%).

Responsibilities of schools

A school is a place in which children study, play and entertain healthily; a place to form and consolidate love of country, grandparents, father, mother, siblings; a place to form and consolidate awareness to comply with the law as well as the school discipline. In addition to the indispensable role of the family in shaping children’s personalities, schools also play an important role in educating and training them to become useful citizens in the society.

In guaranteeing the participation right during the schooling time, Law on Education in 2005 defined responsibilities of schools and teachers as follows: the school must actively collaborate with the family to achieve objectives, apply educational principles, frequently provide educational information for learners, their family or guardian, and create conditions for them to get involved in social activities.

Teachers are not allowed to hurt the honor, dignity and abuse learners. If violated, depending on the nature and seriousness of their violations, they shall be disciplined, sanctioned administrative violation or examined for penal liability, if causing any damage, they must pay compensation therefore.

The Education Law 2005 prohibited acts of maltreating and persecute learners in the school establishments (Article 118). However, the Vietnamese has not yet stipulated procedures supporting children of school establishments, child-support establishments, health care facilities, rehabilitation centers, social protection centers and especially educational establishments for children who break the law, such as re-education schools, to seek advices privately and complain as physically abused.

The Education Law 2005 prohibited to “persecuting” pupils, students, but the “persecution” term is not yet defined clearly and does not know whether or not it includes all forms of corporal punishments. In reality, it is widespread to teach children by using corporal punishment of their parents, members and teachers. Child protection against this abuse requires more synchronous efforts of law enforcement agencies, especially school establishments, social protection centers and rehabilitation centers as well as educate and raise awareness of parents and the community.

Responsibility of the State

Apart from the recognition of the rights to freedom of speech, information access of people in general and children in particular, the State also facilitated people to implement the rights to freedom of the press, freedom of speech on the press and encouraged the press to bring its role into play within legal framework and under protection of the State, not any organizations or individuals are allowed to restrain or hinder their activities. The press was not censored before printing or showing. In the field of publishing, the State ensures the rights to disseminate productions under the form of publication through publishing house and protecting authors’ rights. The State does not censor production before publishing (Article 5 Law on publishing 2005).

The State stipulates responsibilities of organizations, departments, individuals working in information fields in protecting the rights of children to information access, including: “Implementing the rights to freedom pf the press, freedom of speech on press of people; was responsible for receiving and publishing the comments, criticisms, information, pictures and other articles with suitable content of citizens;  giving honest information on current situation of country and  the world associated with children’s benefit; propagandizing and disseminating direction and policy of the Party and legislation of the State on protecting, caring and educating children; partly satisfying demand on culture and safe information of children; Reflecting and guiding public opinion; organizing forum to implement the rights to information access; having the right to exploit and responsibility to provide information and ensure timely and accurate information and so on within scope of State’s power and tasks”  (Article 6 and article 15 of the Press Laws; Article 35 of the Law on child protection and care 2004; Article 2 Decree No. 51/2002 ND-CP).

The State issued incentive policies, support policies and facilitated organizations, departments, individuals participating in ensuring the rights of children to access to information such asincentive tax for the publication of textbooks and teaching materials; the production and supply of teaching facilities, toys for children; the import of books, magazines, documents, teaching facilities and research equipment in school and other educational facilities. Additionally, the policies also supported to order publications for teenagers, children, ethnic minority, and people with visual impairment. The freight of publications for regions with extremely difficult social-economic conditions; work of  external information and mountainous and island areas is also subsidized. Moreover, the policies assists to purchase valued drafts but publishing time is not appropriate or target groups are restricted to use and copyright of domestic and international art works for social, cultural and economic development.

In order to further ensure citizen’s right to information in general and child’s right to access information in particular the prime minister issued decisions approving the strategy on Vietnam information and communication technology development till 2010 and orientation toward 2020. Accordingly, the strategy identified several incentive policies and facilitated agencies, organization and individuals in the country oversea to develop the system of information, communication and technology

The state simultaneously encourages and facilitates to ensure children’s right to information and strengthen useful information for children. At the same time, the state also plays an important role in fighting against and preventing children from harmful information which have negative effect on the development of children in particular and society in general.

5. Conclusion and some solutions for implementing participation right of children

The Law of Vietnam fully specified the rights to participation and raising voices on children-related issues which are suitable with standards of international convention on the Rights of the Child.

The child’s right to participation was stipulated quite adequately in the provisions of the Law on the right of citizens in general and particular legal documents for children.

The right to participation of children was legalized on the basis of ensuring the best benefits for children at the same time respecting their opinions on all issues in the field of child rights, step by step promoting their role and contribution to the society as a future leader of the country.

The recognition of children right is based on their age and level of awareness. In many cases, children’s participation is compulsory procedure and their opinions have strong effect on the decision of competent authorities.

The right to participation of adolescent in procedural due process is ensured in different levels and depends on the legal right of adolescence in procedural due process. Procedural law also specified mechanism for ensuring the free approach to judicial system of adolescent without threats and coercion. The protection of adolescence’s right in general and the right to express their opinions is carried out by legal representative and lawyers.

– It is needed to develop principle of respecting children’ opinions as fundamental principle in marriage and family Law. The reason is that apart from the relationship with parents in family, children also have relationship with other older people.

– It should state clearly the right to freedom assembly and peaceful association in the Law on the Protection, Care and Education of Children rather than a general provision that is the right to participate in other age-appropriate social activities.

– It should supplement the right to express children’s opinion in many fields: appointing guardian for minors and limiting parental rights to their children who are minors.

– It is needed to recognize the competence to participate in administrative proceedings of adolescents. Accordingly, the adolescent is one party of administrative relationship and have right to lodge the complaints and initiate an administrative lawsuit.

– It should stipulate that adolescents are allowed to engage in administrative decisions affecting directly on their right as the process of making decision on the measure of educating in reformatory school or in locality.

– It should ensure that the adolescents are required to have defense counsel in the administrative process for them.

– It is needed to have guiding documents on implementing mechanism of the right to denounce suitable with adolescents (manner, time, specific provisions for receiving and addressing information from children in which there have some allowing to receive and handle denunciation. At the same time Law on denunciations also needs to have specific provisions on compulsory denunciation obligation, cases must be reported and penalties in case some targets who usually meet and talk in person with children such as parents, teachers, etc violate obligations.

It is demanded that Vietnam builds juvenile court to deal with adolescents who violate the Law and are the targets of violence in the long term. Other procedural agencies such as investigation agencies and the  procuracy also need to establish specialized departments to handle with cases relating to adolescents. Besides, it should build an order and particular procedure differing from other ones which apply for adults with the aim of dealing with violated adolescents towards reducing seriousness but ensuring legal procedure. That is, adolescents are provided favorable conditions to express view points, aspirations, and self-determination as well as other conditions to ensure this specific procedural due process.

It is essential to have additional research on regulation of reformatory school (issued with the Decree no 142/NĐ-CP dated in 24 November 2003) and specific provisions on the procedure for children to exercise their rights in general and the right to participation in particular in regulations of educational facility for children violating the Law

References

1. The Constitution in 1992 (amended in 2013).
2. International Convention on the Rights of the Child
3. Law on the Protection, Care and Education of Children, 2004
4. Marriage and Family Law, 2005
5. Education Law, 2005
6. Press Law
7. Civil Code, 2005
8. The decision of the Government on Vietnam information and communication technology development of information till 2010 and orientations toward 2020.
9. The study of child abuse conducted by Institute for Youth of Ho Chi Minh Communist Youth Uni
10.  

MA. Quach Thi Que

Institute Of  Labour Science And social Affair