In addition to approaching from the perspective of the rights of the subject of denunciation, it is also necessary to start from the concept of denunciation itself, because that is the cause of the need for protection. As analyzed in subsection 2.1.1.2, in the Vietnamese legal system, denunciation is an administrative legal relationship. As a result, it is necessary to position the protection of whistleblowers as a provision of Administrative Law. Administrative law is understood as the totality of legal norms regulating social relations arising in the process of administrative management activities of state administrative agencies, social relations arising in the process of state agencies building and stabilizing their internal working regimes, social relations arising in the process of state agencies, social organizations and individuals carrying out administrative management activities on specific issues prescribed by law [137, pp.9-10, p.21].
In form, the whistleblower protection regime is expressed through a system of administrative legal regulations on whistleblower protection with the aim of preventing, stopping, detecting and handling acts that infringe upon the legitimate rights and interests of whistleblowers, acts of intimidation, revenge and repression against whistleblowers. These administrative legal norms are present in many legal documents promulgated according to the authority, order and procedures prescribed by law, such as: Constitution, Law on Denunciation, Law on Citizen Reception, Law on Anti-Corruption, Law on State Compensation Liability, etc. In particular, the Constitution, Law on Denunciation, Decree guiding the implementation of the Law on Denunciation, Circulars, Regulations regulating the process of receiving citizens, the process of handling petitions, regulations on authority, order and procedures for protecting the working position of whistleblowers who are cadres, civil servants and public employees, protecting the jobs of whistleblowers who are employees under labor contracts, protecting the life, health, property, honor and dignity of whistleblowers about acts of corruption and waste, etc. have direct and specific regulations on protecting whistleblowers. In addition, administrative law regulations in other relevant legal documents, such as the Law on Cadres and Civil Servants, the Law on Public Employees, the Law on Inspection, the Law on Handling of Administrative Violations, etc., also contribute to establishing increasingly effective tools and measures to protect whistleblowers.
In terms of content, in relation to the right to protection, the whistleblower protection regime stipulates administrative legal forms with the regulatory goal of ensuring the safety, rights and legitimate interests of whistleblowers. According to a research work on ensuring and protecting human rights, administrative legal forms are forms used by state agencies in state administrative activities - execution and management activities. They are methodological measures used in state administrative activities to ensure social order and ensure human rights. Ensuring human rights through administrative legal forms is a form of legal guarantee [61, pp.181-182]. Therefore, from the perspective of rights theory, administrative legal forms to protect whistleblowers are understood as forms used by agencies and organizations in state administrative management activities with the aim of protecting whistleblowers. The subjects implementing these forms and measures are mainly state administrative agencies.
Here, the protection of whistleblowers is a specific and direct measure to ensure the safety, rights and legitimate interests of the whistleblowers and their relatives. These measures are aimed at helping the whistleblowers avoid the risk of being threatened, retaliated against or applied when there is an act of infringement, an act of threat to the position, job, life, health, property, honor and dignity of the whistleblowers and their relatives due to the denunciation. In other words, these are direct measures to protect the whistleblowers. These measures are administrative measures or administrative measures prescribed by administrative law. It is clearly distinguished from other methods of protecting whistleblowers such as: protecting whistleblowers by the Court or protecting whistleblowers through litigation activities...
In summary, from the analysis of the concept of whistleblower protection according to the two approaches mentioned above, we can come to the following definition of whistleblower protection:
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Protection of whistleblowers is a provision of the Administrative Law regulating the methods, measures and responsibilities of agencies, organizations and individuals to implement the protection.
present the right to protection to ensure the human rights of whistleblowers.
2.1.2.2. Basic characteristics of whistleblower protection under administrative law
Based on the above approach to the concept of whistleblower protection, it can be seen that whistleblower protection under administrative law has the following basic characteristics:
Firstly, the object of whistleblower protection is the human rights of the whistleblower. In the current period, when the subject of whistleblowing is always an individual, the right of an individual, this characteristic is very meaningful in understanding the nature and purpose of the whistleblower protection regime. The purpose of whistleblower protection, ultimately, is to protect human rights and civil rights. According to the provisions of the Constitution, everyone has the right to life; the right to inviolability of the body, to be protected by law regarding health, honor and dignity; the right to inviolability of private life, personal secrets and family secrets; the right to protect one's honor and reputation; the right to inviolability of residence... Citizens have the right to social security; the right to work, to choose a career, job and workplace... In itself, whistleblowing is also a human right. Therefore, protecting whistleblowers is also protecting human rights, protecting the subject of human rights and civil rights. This is also the responsibility of the State in respecting and protecting human rights and civil rights.
Second, the subject of protecting whistleblowers is the responsibility of all organizations, individuals, and the whole society, in which the responsibility first and foremost belongs to the State. This stems from the purpose and role of denunciation. By denouncing, whistleblowers have helped State agencies and relevant institutions promptly detect, prevent, and handle violations and illegal acts, contributing to protecting the interests of the State, the common interests, and the legitimate rights and interests of agencies, organizations, and individuals. Whistleblowers can help prevent damage, save the lives of others, protect human rights, civil rights, protect legal order, protect justice, and social equity. More and more countries consider denunciation as an important tool in preventing and detecting corruption as well as other negative acts [199]. Not only does it help state agencies
The authority to monitor compliance with the law and detect acts of corruption and law violations, with the aim of fighting for the public interest, denunciation is also considered an effective tool for risk management in organizations and legal entities in the private sector [193 , p.54]. Therefore, logically, protecting whistleblowers is an objective responsibility of the State. In addition, denunciation is related not only to state management activities but also to the activities of many other organizations and individuals in society, so these organizations and individuals also need to be considered responsible for protecting whistleblowers in specific fields and jobs. For example, when whistleblowers use postal services to send petitions and documents, postal staff also need to be aware of respecting and protecting the privacy and confidentiality of information for whistleblowers.
Third, on the scope and content of whistleblower protection. If the object of whistleblower protection is the whistleblower's human rights, then the scope and content of whistleblower protection will be characterized by being linked to human rights but related to ensuring that human rights are not harmed or violated when making a denunciation. While making a denunciation, the whistleblower basically has risks to his/her identity, property, work, and even life. Those risks arise from the context in which, when making a denunciation, the whistleblower becomes: (i) the subject of retaliation, revenge, threats, and persecution by the accused; (ii) the subject of slander, slander, discrimination, and social pressure. These risks can become actual acts of harm to the whistleblower. Thus, basically, the human rights that need to be protected for whistleblowers are the rights to personal privacy, the right to fair treatment, the rights to property, work, health and basic personal rights such as honor, dignity... According to administrative law in Vietnam, "protecting whistleblowers means protecting the confidentiality of the whistleblowers' information; protecting the job position, job, life, health, property, honor, dignity of the whistleblowers, their spouses, biological fathers, biological mothers, adoptive fathers, adoptive mothers, biological children, and adopted children" [118]. Accordingly, the law sets out specific legal measures and stipulates the competent authorities and responsibilities.
Responsibilities and procedures for implementing measures to protect whistleblowers.
Looking at whistleblower protection from the perspective of a human right of the whistleblower, the administrative legal forms protecting whistleblowers include two types:
- Administrative legal forms that ensure the whistleblower exercises his/her right to protection, including: (i) Protection procedures; (ii) Preventive and containment measures, such as: protecting the whistleblower's information confidentiality, protecting his/her life, health, property, honor, dignity, etc. (iii) Remedial and restorative measures, such as: protecting his/her job position, employment, etc.
- Legal forms of rights protection include: Administrative responsibility; disciplinary responsibility; material responsibility and complaints and denunciations.
In addition to the typical administrative forms of liability mentioned above, whistleblower protection forms focus heavily on remedies, restoration of rights, and compensation for damages to whistleblowers. Remedies may include not only lost wages but also compensation for suffering. For example, under English law, the Court has ruled that compensation may be provided for suffering, based on a system developed based on developments in anti-discrimination law [63]. In Korea, whistleblowers have the right to request the Anti-Corruption and Human Rights Commission (ACRC) to pay relief if they face financial loss or expenses, such as medical expenses, travel expenses for the dispute, or loss of wages, as a result of their whistleblowing. The ACRC may also request reinstatement and transfer or placement of new employment opportunities [63], [161].
2.1.3. The role of administrative law adjustment on whistleblower protection
Law in general plays an extremely important role. It is an indispensable tool, ensuring the existence and normal operation of society, improving social life and contributing to the creation of new values. Law is a tool for the State to manage all aspects of social life. At the same time, it is a means to implement and protect the legitimate rights and interests of each person, each citizen [141], [142], [143].
Some authors believe that law is not only a necessary social management tool, but also very important and effective. In today's Vietnamese society, law is a political weapon for the Vietnamese people to fight against hostile forces, maintain security, social order and safety; is the means through which the Communist Party of Vietnam leads society; is the legal basis for the Vietnamese state apparatus to organize and operate; is a tool for the State to effectively manage different areas of social life; is a tool to establish and ensure social justice, implement socialist democracy; is a means to educate new people; creates a favorable legal environment for the formation of new relationships in society; is an effective tool to protect civil rights and human rights; at the same time, law protects and creates conditions for other social management tools to develop for a fairer, more civilized, and better society [70].
As part of the Vietnamese legal system, administrative law on whistleblower protection has the following main roles:
- Administrative law on the protection of whistleblowers plays a role in institutionalizing the policies and viewpoints of the Communist Party of Vietnam into common goals and tasks of society. The policies and viewpoints on the protection of whistleblowers in the resolutions and directives of the Party, such as: Resolution No. 04/NQ-TW dated August 21, 2006 of the 3rd Conference of the 10th Party Central Committee on strengthening the Party's leadership in the work of preventing and combating corruption and waste [1]; Conclusion No. 21-KL/TW dated May 25, 2012 of the 5th Central Conference (11th tenure) on continuing to implement the Resolution of the 3rd Conference of the 10th Party Central Committee on strengthening the Party's leadership in the work of preventing and combating corruption and waste [3]; Resolution No. 04-NQ/TW dated October 30, 2016 of the 4th Conference of the 12th Party Central Committee on strengthening Party building and rectification; preventing and repelling the degradation of political ideology, morality, lifestyle, and manifestations of "self-evolution" and "self-transformation" within the Party [4]; Directive No. 50-CT/TW dated December 15, 2015 of the Politburo on strengthening the Party's leadership in the work of detecting and handling cases and lawsuits
corruption [15]; Conclusion No. 10-KL/TW dated December 26, 2016 of the Politburo on continuing to implement Resolution No. 3 of the 10th Central Committee on strengthening the Party's leadership in the work of preventing and combating corruption and waste [16],... has been and is being institutionalized into legal regulations on the protection of whistleblowers. In particular, the Party's policies and viewpoints in Directive No. 27-CT/TW dated January 10, 2019 of the Politburo on strengthening the Party's leadership in the work of protecting whistleblowers, whistleblowers, and those fighting against corruption, waste, and negativity [18]; Documents of the 13th National Congress of the Party [42] are posing the requirement to continue institutionalizing the law and further improving the law on the protection of whistleblowers.
- Administrative law on whistleblower protection establishes the legal basis and legal framework for agencies, organizations, individuals and the whole society to protect whistleblowers. It is the framework for the activities and behaviors of both competent and responsible entities, relevant agencies, organizations and individuals and those who need to be protected. This is because the highest role and value of law is the function of regulating social relations [152, p.130]. ​​Not only that, the law on whistleblower protection is also a key component of the whistleblower protection mechanism, a very important legal guarantee for the implementation of whistleblower protection in practice.
- Administrative law on the protection of whistleblowers educates and raises people's awareness in society. Because as standards, law plays a particularly important role in the process of forming and developing personality, in which law forms the tendency to be good in the behavior of the subject [68]. Law is the rules of conduct established by the State to regulate the behavior of all members of society. Therefore, the regulation of law here plays a role in fighting evil, protecting good, guiding people to act in a relationship towards goodness [68]. Specifically, administrative law on the protection of whistleblowers educates and raises awareness and responsibility of each citizen, each individual and the whole society, contributing to building a culture of public service, legal culture and healthy and positive public opinion in protecting whistleblowers.
- Administrative law on whistleblower protection is the internalization of international commitments, ensuring the implementation of international commitments related to the protection of whistleblowers. Administrative law on whistleblower protection has conveyed the contents of the Charters, Declarations, Conventions, and International Treaties that Vietnam has participated in and signed into national law, and at the same time ensures the implementation of those international legal documents in the country. Such as the United Nations Charter, the Universal Declaration of Human Rights, the United Nations Covenant on Civil and Political Rights, the United Nations Covenant on Economic, Social and Cultural Rights... In particular, the United Nations Convention against Corruption (UNCAC) requires that countries, when signing, must consider, review, adjust, supplement or promulgate legal provisions in accordance with the political, economic and cultural conditions of their country, in order to protect whistleblowers from unfair treatment from the accused and related persons [129].
2.2. Contents of administrative law adjustment on whistleblower protection
2.2.1. Legal principles in protecting whistleblowers
The legal principles in protecting whistleblowers are divided into two groups: basic principles and legal technical principles.
The basic legal principles in protecting whistleblowers are the general principles of Administrative Law . As a system of Administrative Law, the law on protecting whistleblowers is also governed by the general principles of Vietnamese Administrative Law. These are the principles of Party leadership, democratic centralism, legality, etc. In the specific field of protecting whistleblowers, the legal regulations promulgated and enforced must reflect the general principles of Administrative Law. These general, basic principles determine the core issues and nature of the system of protecting whistleblowers.
Based on the basic legal principles, there are a number of specific technical principles used in the whistleblower protection regime. These technical principles are reflected in international law and domestic law.