November 11, 2006
The legal community and those who have concern for the pro-democracy movement in Vietnam, including a small number of pro-democracy activists, are cheering by the announcement of the removal of the Administrative Detention Decree 31/CP, which was signed by (former Prime Minister) Vo Van Kiet on April 4, 1997.
Administrative Detention Decree 31/CP has it full name as the Government Decree number 31/CP pertaining to the Governance of Administrative Detention. It was later known as Decree 31. This decree is applicable to individual(s) with behaviors which may be considered as threatening to the national security as stated in Chapter I in the section of Criminal Laws; however, these violations “does not meet the criteria for criminal prosecution” (section 2). This decree is considered to be one of the most effective tools for the Vietnamese government to oppress the pro-democracy movement since it was first issued. Thereof, the sole purpose of Decree 31 is to be applied on a sole targeted population: the non-violent democracy activists who speak the voice of conscience to demand freedom, human rights, and a civilized and pluralistic political system for Vietnam.
In the past as well as the present, Vietnamese Communist regime always labeled the pro-democracy activists as individuals who “violated national security” or “related to national security”. Their crimes are viewed as: reacting against government policies, engaging in anti-revolutionary propaganda, abusing democracy, instigating actions that disrupt the national unity, disrupting public order, insulting leaders … The government uses these “so-called” crimes as reasons to carry out acts of oppression such as arresting, interrogating, forcing employers to fire the activists, accusing activists of criminal acts which lead to imprisonment and detention. As we all know, detention is the method that is being used most often and most arbitrarily among numerous methods used to oppress pro-democracy activists.
The Vietnamese authority classified detention as an administrative method. This means that the authority can hand out “home prison” sentence from 6 months to 2 years to any individuals who has been branded as “violating national security.” The most horrific and darkest part of Decree 31 is the content of “do not meet the criteria for criminal prosecution”. However, the government does not clearly specify what “do not meet the criteria for criminal prosecution” means. The lack of a clear definition in the decree is intended to create the environment that is applicable toward any citizen at any circumstance that the government sees fit to punish for the crime of “violating national security”, where the government is unable to present evidence for prosecution or it is hesitated to prosecute due to the anticipated un-favorable public opinion. Therefore, Administrative Detention is the effective method selected by the Vietnamese Communist regime to manage these individuals because it considers that it should not or unable to prosecute these individuals publicly.
Because of this decree, many peaceful pro-democracy activists were forced to live in prison of their own home all these years. Living in such circumstance, the victims must present “appropriate reason” to leave the house and must file petition for approval by the government (section 17). This stipulation of the decree is stated in clear and minute details of all aspects applicable to the party upon whom the decree is enforced. In contrary, the decree gives the government the “full power to decide” and “issue the permit”, without stating any detail of which cases the permit can be granted or denied – No matter how hard or closely one examines this decree.
One-way stipulation, which is only applicable to the targeted victims, is the legal foundation established upon the basis that the laws should serve the interest and arbitrary of the government, not of the interest to the people and their rights.
Readers would question that why there is yet the connection between the topic and the content of this writing. It is so because the above is the analysis of Decree 31. On September 5, 2006, the Vietnamese authority issued Decree 22/NQ-CP that caused much stirring in public opinion inside and outside of Vietnam. because section 5 of this decree stated:
“Section 5. The Government has listened to the Minister of Justice Department presented on the removal of the Administrative Detention Decree 31/CP issued on April 14, 1997. The Government united, in the condition of establishing the rule of law Socialist Republic of Vietnam, and further the integration of Vietnam into the international community, to practice judicial reform, that it is deemed necessary to remove the Administrative Detention Decree 31/CP. In order to establish the legal basis, the Minister of Justice Department, under the order of the Prime Minister, represent the Government to present to the Congressional Standing Committee the case of issueing a new decree which will remove or suspend certain section of the Aministrative Detention Decree 31/CP; and thereafter, to remove the Administrative Detention Decree 31/CP.”
Needless to say that the Vietnamese Communist regime has made progressive step to correct mistakes done by them as stated in section 5: “establishing the rule of law Socialist Republic of Vietnam, and further the integration of Vietnam into the international community, to practice judicial reform, that it is deemed necessary to remove the Administrative Detention Decree 31/CP”.
But do they truthfully want to do so?
The answer is NO because the removal of Decree 31/CP, in reality, does not have the same meaning as the Vietnamese government is publicizing to mislead public opinion. For a long time, Decree 31 is no longer being enforced, to be exact – on October 1, 2002, when the Ordinance on Settlement of Administrative Violation 2002 became effectively enforceable.
As we all know, ordinance has high legal standing and power, and it only stands behind the Constitution and the Law. In regards to the enforcement priority, the principle of time become the guideline for enforcement. If two or more legal documents pertaining to the same issue, then the later has the power of enforcement priority. Therefore, Ordinance on Settlement of Administrative Violation is higher in power and issued after Decree 31. The current issue is that all the stipulations on administrative detention of Decree 31 were re-packaged nicely and sharper into Ordinance 2002 and still embodies the framework of Decree 31 with these sections:
Section 6, Clause 2 states: “Target for the enforcement of other administrative settlement is stated in section 23,24,25,26 and 27 of this Ordinance.” Section 22 stipulated the methods administrative settlement included: hand over (the subjected individual) to the provincial educational authority, forced correctional facility, forced educational institution and handover to medical facility and administrative detention centers. Section 27 stipulates that the Chairman of the People Committee at provincial level to judge over the individual whose behaviors violate national security but did not meet the criteria for criminal prosecution. The time frame for detention is 6 months to 2 years.”
The content of Decree 31 is stipulated cleverly with higher legal power of enforcement when incorporated into the Ordinance. At the same time, the methods of handing over to educational facility (section 25) and handing over to medical facility (section 26) were also incorporated into this Ordinance with a wide range of enforcement. These two methods of oppression are commonly used by the regime upon the pro-democracy activists because the educational facility is nothing more than a prison in disguise. The educational facility might have its educational impact on criminals, but in reality, the government abuses this method to oppress political dissidents. The individually subjected to be handed over to medical facility as stipulated by the Ordinance are the drug addicts and prostitutes (section 25, clause 2), but in reality, the Vietnamese government has been branding political dissidents as having mental disorders and forced them into mental hospital in order to harm them.
Therefore, if the Vietnamese authority says that it “deemed necessary to remove the Administrative Detention Decree 31/CP” then they must truly remove all stipulations on administrative detention, not simply remove a decree that already “dead” for a long time !!!
What the Vietnamese Community regime did is merely let Decree 31 “die one more time”. The regime’s true intention is clear. Currently, Ordinance on Settlement of Administrative Violation, Decree 38/CP issued on March 18, 2005, pertaining to the (freedom of) civil assembly, and Decree 56/CP, issued on June 6, 2006, pertaining to the cultural and communication, are even more clever. These decrees have much more legal power to oppress the pro-democracy activist. These individuals bravely speak their voice of dissent against the negative social conditions caused tyrannical Vietnamese Community Party. And the method of detention, under the beautified name for home prison, is still in full effect in the Ordinance on Settlement of Administrative Violation 2002.
Moreover, in 1991, Vietnamese Communist Congress has removed the “Decree of Centralized Re-Education”. Each application of this decree can last to 3 years. (In 1991, there were some individuals who received 5 continuous applications of this decree were imprisoned for 15 consecutive years.) Therefore, with the Ordinance 2002, the regime has re-enacted “Decree of Concentrate Re-correction” by “handing over the subjected individuals to educational facilities from 6 months to 2 years, which can be extended arbitrarily.”
Therefore, all dissidents, democracy activists, and public opinion must be fully and correctly aware of the tactics by the Vietnamese Communist regime.
