Beyond the Statute: Constitutional Limits on Extra-Statutory Measures under Vietnam’s 2025 Emergency Law

Abstract

This article determines the constitutional boundary between permissible emergency implementation and executive creation of new rights restrictions under Article 12(2)(c) of Vietnam’s 2025 Law on the State of Emergency. Its objective is to reconcile operational flexibility with Article 14(2) of the Constitution, which reserves rights restrictions to law. The article contributes a rights-specific delegation framework—the open-means–closed-rights model—and operationalizes it through a legal-incidence test and a three-stage, seven-question Emergency Legality Test. It uses doctrinal analysis of the Constitution, Law No. 104/2025/QH15, Decree No. 190/2026/ND-CP and legislative materials, supplemented by functional comparison and ICCPR standards. The analysis treats reservation of law, delegation, proportionality and emergency constitutionalism as sequenced tools. It finds both a substantive deficit, because Article 12(2)(c) does not predetermine the legal incidence of an unprovided measure, and an institutional deficit, because the consenting “competent authority” and review deadline are undefined. Formal statutory authorization and proportionality cannot cure those deficits. The clause is defensible only for factually novel operational means within legislatively fixed rights boundaries; normatively novel duties, prohibitions, sanctions or intensified restrictions require National Assembly legislation. The article concludes that legality must precede balancing. It recommends written reasons, immediate publication, seven-day expiry, Standing Committee review, legislation for primary restrictions and accessible remedies. The framework is novel because it converts legality principles into a consequence-generating method for classifying residual measures and allocating constitutional authority.