November 8, 2014
– The right to do business has been affirmed in Article 33 of Constitution 2013 and Clause 1, Article 7 of the Enterprise Law 2005. The former highlights every individual’s right whereas the latter pertains to that of every enterprise’s right to embark on any field of endeavor that the laws do not forbid.
If these two regulations are anything to go by, legal documents such as decrees or circulars can ban fields of business. However, Clause 3, Article 7 of the Enterprise Law states that the Government will clearly state sectors where business is forbidden. Clause 5 of the same article holds that ministries, people’s councils and people’s committees are not allowed to impose conditions to do business or decide where business is banned.
Reasons for ban
Clause 2, Article 14 of Constitution 2013 stipulates that human rights and citizen rights can be restricted by laws only. Therefore, the sectors where business is restricted or banned must be specified in regulations.
Even then laws can restrict and ban business when defense, national security, social order, the country’s moral fabric and the community’s health are at stake. Reasons such as a business exerting detrimental impacts on Vietnam’s traditions and environment are therefore at odds with Constitution 2013. It is thus necessary to reconsider the necessity of criminalizing “doing business against what the law allows.”
In view of the Constitution and real-life circumstances, the justifiability of banning business in many of the 14 sectors stipulated in Article 7 of Decree 102/2010/ND-CP dated October 1, 2010 by the Government can be a matter of debate. For example, business pertaining to firecrackers is banned, but there are still firms that produce or import, say, fireworks for use in many instances.
Sectors where business will still be banned
It is problematic that regulations pertaining to sectors where business is forbidden are included not in the draft Enterprise Law but in the draft Investment Law. Both drafts have been presented to the National Assembly and share the definition for business, with investment as merely one of the phrases.
The draft Investment Law lists only six sectors where investment and business are banned unless stated otherwise (refer to the box). However, controversy remains. For example, some chemicals are banned unless allowed by the Prime Minister. The same goes for the ban on trading in human organs, which makes sense except when it comes to reproductive cells (as they can be extracted easily with minimal harm on the body).
Complicated regulations and confusion abound. Debt collection is not really a sensitive field of business, but is subject to the management of both the Ministry of Finance and the Ministry of Public Security, with different certificates involved. Meanwhile, it remains unclear which ministry will monitor tattoo services, considered as having an impact on the community’s health.
Only when clarity with regard to business restrictions and bans is achieved can the gloomy prospect of sub-licenses proliferating, which is at odds with the Constitution and many other regulations, be avoided.
(By Lawyer Truong Thanh Duc)