November 18, 2010
Duy Hoang and Angelina Huynh
Viet Tan – viettan.org/en
Criminalizing Basic Rights
The Socialist Republic of Vietnam is increasingly relying on rule by law to restrict free speech and civic opposition. This trend began in the 1990s as the Vietnamese Communist Party opened up the country to foreign trade and investment and built up government and legal structures to deal with the outside world.
In recent years, Vietnam has taken on greater international obligations such as joining the World Trade Organization in 2007, serving on the United Nations Security Council in 2008-2009 and chairing the Association of Southeast Asian Nations in 2010. To meet the ensuing demands for greater transparency and accountability, Vietnamese authorities pledged to create a “law-governed State of the people, by the people and for the people.”
In practice this has meant the State uses laws as an instrument to govern the people. This situation is exemplified in a key provision of the Constitution:
Citizens are entitled to freedom of speech and freedom of the press; they have the right to receive information and the right of assembly, association and demonstration in accordance with the law.
The qualifying phrase “in accordance with the law” allows the Hanoi regime to simultaneously claim that its respects human rights while only arresting law breakers. As state President Nguyen Minh Triet told Western reporters: “We love the fundamental rights of man and respect human rights. But if anyone violates the law we have to punish them.”
The manner in which the regime punishes so-called law breakers has followed the evolution of political dissent in Vietnam. In the 1990s, Vietnamese dissidents with a few exceptions were elderly religious leaders and former Communist Party members. For the most part they acted alone or were loosely coordinated. Authorities responded by isolating the dissidents and usually detaining them without trial. In the few cases where dissidents were brought to trial, they were often convicted on the vague charge of “abusing democratic freedoms to infringe upon the interests of the State” (Article 258 of the Vietnamese Penal Code).
In the last decade, Vietnamese activists have become more broad-based—comprising younger professionals, social activists and citizen journalists. Much of the activism has been facilitated by information technology as activists regularly posted their writings online. Internet penetration reached a critical mass in 2007 when 15 million Vietnam, almost 20% of the population, were online. In response to the greater political space afforded by the web, the regime detained numerous individuals for “conducting propaganda against the socialist state” (Article 88).
During this time, the Vietnamese democracy movement also became more organized with unsanctioned political groups beginning to operate somewhat openly. New or existing organizations that sprung forth included the Bloc 8406 and the United Workers-Farmers Organization; and political parties such as the Vietnam Progression Party, Democratic Party of Vietnam, People’s Democratic Party, Vietnam Populist Party and Viet Tan.
Authorities cracked down on this new generation of activists with a new set of charges. Promoting multiparty democracy was considered “carrying out activities aimed at overthrowing the people’s administration” (Article 79). Organizing peaceful protests was viewed as “inciting” or “causing public disorder” (Article 89 & 245).
The Vietnamese penal code contains a litany of provisions for repressing dissent. Figure 1 summarizes the most commonly used political charges. Despite the efforts of human rights organizations it is virtually impossible to keep track of all the political trials in Vietnam. Figure 2 lists the more well known democracy and social justice activists persecuted in recent years. All of these individuals were detained for their peaceful activities and their cases have been documented by international rights groups.
Upside-down Legal System
As political prisoners in Vietnam know too well, the basic rights enshrined in the Constitution are limited in practice. Vietnamese human rights lawyer Le Quoc Quan has noted that the legal hierarchy in Vietnam is in fact reversed. At the bottom is the Constitution. Above the Constitution are laws passed by the National Assembly. Higher than laws are decrees issued by government authorities. And often superseding government decrees is the actual, sometimes arbitrary implementation of the legal system.
For example, government authorities are not supposed to pass laws. They are only allowed in theory to issue decrees to implement laws passed by the National Assembly. But in Vietnam, government authorities (from the prime minister, the president, to the ministries) pass all kinds of laws directly forbidding people from doing certain things. A case in point is Decision 97 by Prime Minister Nguyen Tan Dung which limited scientific and technical research to 317 specifically approved topics. Under this directive dated September 15, 2009, groups in Vietnam cannot publicly discuss subjects which are not explicitly sanctioned.
For democacy activists, arbitrary justice can occur from the time they are detained to when the court issues a conviction. According to Vietnam’s criminal procedure code, all defendants must be notified of the reason for their arrest, but police often refuse to provide a written arrest warrant or provide any acknowledgement of the detention to the family of the accused. In some cases when family members witness the arrest, police coerce the relatives to sign a written pledge not to discuss the arrest with anyone.
While defendants are permitted access to a lawyer in theory, the government has to approve the selection and decides when the attorney and client can meet. Thus, activists are routinely denied legal representation or regular access to their attorney when the representation is granted. It is common for a defense lawyer to meet with his client for the first time a few days before the trial. During the trial of democracy activist Le Thi Cong Nhan, her attorney was allowed only 15 minutes to speak.
Political trials in Vietnam take place in under one day, usually in just two or three hours. The trial is effectively a forum for the authorities to announce the predetermined sentence. Before the proceedings, the security police (Cong An), the prosecution agency (Vien Kiem Sat) and the judges often convene to come to agreement on the outcome of the trial. As a result, no political dissident has ever been acquitted in a Vietnamese court.
Foreign observers are rarely allowed to be present in the courtroom. In some high profile cases, diplomats and journalists have been permitted to watch a television monitor from a separate room. But in other political trials, such as that of cyber-activist Pham Thanh Nghien in January 2010, diplomats were denied access even to closed-circuit television despite official requests. Local Vietnamese who try to attend trials in support of the defendants are turned away and sometimes detained themselves.
Political Charges by Another Name
Although the Vietnamese authorities have routinely used the legal code to criminalize free speech and pro-democracy activities, the regime is not entirely insensitive to domestic and international perceptions. On several occasions, authorities have chosen to apply non-political charges to persecute dissidents. Two particularly infamous cases were the arrests of blogger Nguyen Van Hai in April 2008 and novelist Tran Khai Thanh Thuy in October 2009.
Nguyen Van Hai, who blogged under the name Dieu Cay (meaning “the peasant’s pipe”), was one of Vietnam’s pioneering citizen journalists. Through his Yahoo 360 blog, Dieu Cay exposed government corruption, called for freedom of expression and was among the first Vietnamese to criticize a Chinese government decision to incorporate the Paracel and Spratly Islands—which are claimed by Vietnam—into an administrative unit under China’s Hainan island.
Dieu Cay participated in protests outside the Chinese consulate in Saigon on two consecutive Sundays in December 2007. Despite frequent police intimidation, he continued blogging and on January 19, 2008, appeared with other bloggers on the steps of the Opera House in the central quarter of Saigon. Wearing matching t-shirts with the logo of the Olympic rings as handcuffs, the demonstrators called attention to China’s invasion and occupation of the Paracel Islands exactly 34 years before. In an act of civil disobedience, Dieu Cay proposed a boycott of the Beijing Torch Relay which was to parade through Vietnam on April 29, 2008.
Police summoned Dieu Cay for questioning and even threatened his personal safety by suggesting that they would not be responsible if Chinese agents chose to harm him. Before the Beijing Torch got to Vietnam, police officially arrested Dieu Cay on April 19, 2008. Authorities charged him with tax evasion and he was sentenced to 30 months in prison. Leading international human rights groups accused Hanoi of applying trumped up charges to silence political speech. The Vietnamese government, on the other hand, insisted that Dieu Cay was a common criminal and there was no political connection to his conviction. Ironically, when Dieu Cay’s 30-month prison term expired in October 2010, authorities kept him in prison for anti-state propaganda.
Novelist Tran Khai Thanh Thuy is one of Vietnam’s most renowned writers and democracy activists. She was detained for nine months in 2007 for publicizing the stories of farmers who lost land to government corruption. Following her release from prison, she was physically and psychologically intimidated by authorities. On over a dozen occasions, assailants, believed to be connected to police, threw human feces and dead animals on her doorstep and placed padlocks on her front gate.
On October 8, 2009, Tran Khai Thanh Thuy was physically prevented from attending the trial of fellow democracy activists. That evening, authorities sent plain-clothes police officers to harass her family. Thuy was hit with bricks and suffered from head injuries. The incident was witnessed by her 13-year old daughter who was left alone after police took Thuy and her husband away. While the couple was detained, the state-controlled media published a fictitious version of the actual events that led to the arrest. A photo publicized by state media of the person allegedly beaten by Thuy was proven by Vietnamese bloggers to be a fake picture, actually taken several years before.
Thuy was sentenced to three and a half years imprisonment for “physical assault” on February 5, 2010. The international community—including the US Embassy in Hanoi, parliamentarians around the world, and international NGOs—strongly condemned the circumstances of her detention.
Unlike the typical instances of rule by law where Vietnamese authorities punished legitimate, internationally-recognized political activities, the above cases are examples of authorities fabricating the criminal activity altogether. As Hanoi faces greater criticism for its human rights record, authorities may increasingly resort to ordinary criminal charges to silence political dissent.
Playing the Terrorism Card
Following the 9/11 terror attacks in the United States, the Vietnamese authorities sought to exploit international concern regarding terrorism to discredit political opponents at home. The crucial difference in the Vietnamese context is that groups considered to be “terrorists” by Hanoi—notably Viet Tan and the People’s Democratic Party—do not subscribe to violence and have promoted democratic change through peaceful means.
In August 2006, Vietnamese-American Do Thanh Cong and three other founders of the People’s Democratic Party were arrested by Vietnamese police. Authorities initially accused the group of plotting to bomb the US Consulate in Saigon. After failing to substantiate the terrorism charge and under pressure from the American government, authorities deported Do Thanh Cong to the United States. The three other democracy campaigners (Le Nguyen Sang, Huynh Nguyen Dao, and Nguyen Bac Truyen) were subsequently convicted on May 10, 2007 of anti-state propaganda.
On November 17, 2007, security police arrested six members and supporters of Viet Tan in Saigon as they prepared to distribute 7,000 leaflets advocating non-violent civic action. Authorities accused the activists of planning to commit a terrorist act.
A week later police planted a handgun and some bullets in the checked baggage of an innocent Vietnamese American couple traveling from Los Angeles airport in California to Tan Son Nhat airport in Saigon. Authorities concocted the story that this couple was connected to the above-mentioned Viet Tan activists, in order to brand Viet Tan as a terrorist group. Because the setup of the poor couple was not believable by anyone outside of Vietnam, the Hanoi government quietly released the couple and no charges were ever filed against them. According to an investigation by the US Transport Security Administration (TSA), there was no evidence that anyone brought a firearm through airport security on the day the couple flew from Los Angeles.
Of the six Viet Tan activists initially detained, three were released early and three (Nguyen Quoc Quan, Nguyen The Vu and Somsak Khunmi) were brought to trial on May 13, 2008 and summarily convicted of “terrorism.” Despite the serious charge, the defendants were sentenced to essentially the time already served due to international pressure for their release.
On October 10, 2010, social worker Hong Vo was arrested on suspicion of “terrorism.” A day earlier, she and other Viet Tan members had organized a public demonstration in Hanoi where participants read out a statement and passed out fliers, t-shirts and hats promoting Vietnamese sovereignty over the Paracel and Spratly Islands. After ten days in jail, Hong Vo was released and deported to Australia. Though state media continued to call her and Viet Tan “terrorists,” authorities never substantiated their claims.
With the terrorism accusation, Vietnamese authorities have sought to combine the most troubling aspects of rule by law: criminalizing peaceful political activities and manufacturing false accusations.
Policy Recommendations
1. Advocate for legal reform in Vietnam
Rule by law is not only a human rights problem but also a serious governance issue. Vietnam cannot offer an attractive business climate nor achieve sustainable development without an honest legal system. Foreign investors, international NGOs and donor agencies should urge the Hanoi government to repeal laws—in particular Articles 79 and 88 of the penal code—that criminalize internationally-recognized human rights.
2. Support legal challenges to arbitrary detentions in Vietnam
A small but dedicated community of Vietnamese human rights defenders are confronting injustices on the ground. They can be further empowered through technical and financial assistance. Outside Vietnam, legal advocates can pursue justice by lodging cases with the UN Working Group on Arbitrary Detainment and other jurisdictions.
3. Demand the Vietnamese government to release political prisoners
Ultimately, no person should be jailed for exercising his or her basic rights. You can help raise awareness and provide focused advocacy for specific democracy activists jailed in Vietnam. Express your solidarity with these prisoners and provide support to their families.
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