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From Nguyễn Văn Đài’s April 5, 2018 Trial – What Constitutes “Overthrowing the People’s Government” in Vietnam?

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April 5, 2018 | Nguyễn Văn Đài – probably one of the most prominent dissidents in Vietnam for almost two decades – received one of the harshest sentences for political dissent in recent years.

A court in Hanoi, Vietnam sentenced Nguyễn Văn Đài to 15 years imprisonment and 5 years probation under house arrest. His colleagues tried and convicted in the same case, also received equally harsh sentences. Nguyễn Trung Tôn, 12 years imprisonment and 3 years probation; Trương Minh Đức, 12 years imprisonment and 3 years probation; Nguyễn Bắc Truyển, 11 years imprisonment and 3 years probation; Lê Thu Hà, 9 years imprisonment and 2 years probation; Phạm Văn Trội, 7 years imprisonment and 1 year probation.

The 48-year old former attorney was among the first group of Vietnamese lawyers who took up political cases in the early 2000’s and defended dissidents, as well as those who were persecuted for exercising religious freedom.

Đài was the type of lawyer who would defend those accused of the very same crime he is facing today: “conducting activities to overthrow the people’s government.”

This crime is infamously known among international human rights groups and foreign embassies as the Article 79 of Vietnam’s Penal Code 1999.

While carrying capital punishment as the maximum sentence, Article 79 however, utterly lacks a clear, well-defined description of conducts which would constitute a person’s criminal liability, and as such, making it impossible for people to cry out mea culpa.

The law only states that “a person conducting activities to form or participate in any organization to overthrow the people’s government shall be punished as follows,” and then immediately dwells into specifying the sentencing guidelines from twelve years, twenty years, life imprisonment, up to the death sentence for the main perpetrator, and five to fifteen years for those who act as accomplices.

Because of this ambiguity per se in its language, Article 79 had faced strong criticism from the international community over the years, especially during the last Vietnam’s Universal Periodic Review (UPR) in January 2014.

Critics continue pointing out, that along with Articles 88 and 258 of the Penal Code, the government has used these criminal provisions almost exclusively against political dissidents and pro-democracy activists, taking advantage of the vague language of these codes to criminalize peaceful protests and suppress political dissent.

Facing such international pressure during the 2014 UPR, Vietnam agreed to amend Article 79, and they did, in 2015.

However, except for some minor, cosmetic changes such as the number of the code section from 79 to 109, and adding a category for those who are “preparing to commit the crime” with the punishment ranging from one to five years imprisonment, the remaining of the “new” Article 109 is taken verbatim from Article 79.

In short, we still have to look to actual cases to define which conducts would constitute the crime of “overthrowing the people’s government” in Vietnam, and in Đài’s case today, such conducts would be:

“Opening an office, having a website to operate, developing a ‘shortening manifesto’, having a structured organization, having internal and external affairs strategy, operating to increase membership, capacity, …; abusing the right to promote ‘democracy, human rights,’ ‘civil society’ to conceal the objectives of the Brotherhood for Democracy … waiting for the appropriate timing to openly operate in opposition of the government through changing the political structure in Vietnam, developing ‘pluralism with multiple parties’ and a government with ‘separation of powers’ to overthrow the people’s government while using a private sector economy as its basis.”

The above paragraph was an excerpt taken from the Conclusion section at page 10 of the 16-page long indictment issued on December 31, 2017 against Nguyễn Văn Đài and his five colleagues, Lê Thu Hà (who was arrested together with Đài on December 16, 2015), Nguyễn Bắc Truyển, Nguyễn Trung Tôn, Trương Minh Đức, and Phạm Văn Trội.

The new Penal Code of Vietnam was not taken effective until January 1, 2018. Thus, Đài and his colleagues were charged with Article 79 of the old code.

Nguyễn Văn Đài has never shied away from his political ambitions and his outspoken criticism of the current regime, especially regarding the political monopoly the Vietnamese Communist Party (VCP) has over the country.

In 2006, Đài openly called for the establishment of other political parties and forming political opposition to challenge the VPC’s ruling. According to a research on Vietnam’s democratization advocates conducted by the Australian scholar, Benedict J. Tria Kerkvliet, Nguyễn Văn Đài would fall under the category of those who chose to confront the regime head-on.

He holds a firm personal belief that every Vietnamese people do have the intellectual capacity and enough knowledge to participate in a pluralistic form of governance with multiple parties.

He previously wrote that Vietnam had had other political parties in the past, during the 1930’s and the early independent days from 1945-1946. Notably, in the South of Vietnam – before the fall of Saigon – political parties were very active. Moreover, Đài always believes that the current Constitution supports the formation of other political parties besides the VPC.

His direct challenge to the ruling party’s power resulted in a conviction for “propaganda against the state” under Article 88 in 2007, where he served four years in prison and was released in 2011.

Coincidentally, 2011, the year in which Đài was released, also marked the beginning of an unprecedented rise of the young pro-democracy and pro-human rights movement in Vietnam.

Starting in the summer of 2011, Vietnamese people – especially youths – swarmed the streets of major cities such as Hanoi and Saigon, protesting against China’s aggression due to the incident involving the cutting of Vietnam’s Binh Minh vessel’s cable cab in the South China Sea.

People organized protests through Facebook’s pages, and statuses, calling for massive turnouts all over the country like never seen before, at least not anything like that had happened since after the Vietnam War was over in 1975.

At first, the government allowed the protests, but when faced with thousands of youths on the streets, they quickly decided to change course and started cracking down on peaceful protesters. Yet this very conduct of the government had opened doors to another era of civil disobedience in Vietnam: the birth of the independent civil society organizations (CSO) movement inside the country. Many of the protesters on those streets in Vietnam six years ago are now the prominent faces of the pro-democracy movement.

The undeterred Nguyễn Văn Đài quickly caught on to this phenomenon and organized his own CSO – the Brotherhood for Democracy (which got named in the indictment) – continuing pushing for political changes through challenging the one-party rule. A person with charisma, Đài again rose to the occasion, becoming the familiar face during those meetings with foreign officials and diplomats from many embassies in Hanoi.

And that was documented in his December 2017 indictment as well, where it detailed how he was able to connect with foreign institutions and individuals to secure funding for his CSO – activities that are normal for any non-governmental organization around the world. The indictment even named diplomats from the U.S. and Germany as people who acted as his references.

It also worths noting that almost two years ago, Vietnam’s National Assembly attempted to pass a law on association with restrictions on receiving “foreign funds.” However, such efforts failed when faced with stern opposition from NGOs and CSOs from Vietnam, both registered and non-registered.

Thus, except for the indictment in Đài’s case making it out to be a crime, Vietnam’s laws have yet to prohibit NGOs to receive foreign financial aids.

But the reality remains, that as of right now, Vietnam still only has one political party – the Communist Party – and Nguyễn Văn Đài and his colleagues’ latest trial and conviction demonstrate that any efforts aiming at forming a political opposition would constitute conduct punishable by very long and harsh sentences.

In December 2008, many people gasped as China sentenced Nobel Peace Prize Laureate, Liu Xiaobo, to 11 years for “suspicion of subversion against the state.”

Now almost ten years later, in April 2018, using an eerily similar charge against Nguyễn Văn Đài and his colleagues, Vietnam has demonstrated that it too, does not yield to international pressure and would even go the extra miles in sending political dissents to prisons for even longer terms than its communist big brother.

Human Rights

The 88 Project: Bringing the silent voices of Vietnam to a larger audience

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A screenshot from The 88 Project's database of Vietnamese activists in prison and at risk.

As a Vietnamese overseas student working on her Ph.D. at Indiana University’s School of Law, Huong Nguyen was focused on her academic career but couldn’t stop thinking about the activist community she was involved with in Vietnam.

This explains why she frequently reached out to students and gave presentations around campus, one of which was the student chapter of Amnesty International.

It was there that she met Kaylee Uland, a blonde, blue-eyed undergraduate whose life growing up in Indiana was far removed from Vietnam and the communist government’s litany of human rights violations that she heard from Huong that day.

“This was one of my first exposures to learning about political prisoners, and it gnawed at me learning that some people were in prison solely because of expressing their political or religious beliefs or a blog post,” Kaylee responded in an email.

Fired up by Huong’s talk, Kaylee began to dedicate herself to advocacy efforts alongside Huong, conducting public outreach efforts on campus and letter-writing campaigns. Around the same time, Huong connected with Ella Gancarz, a filmmaker who wanted to create a documentary about human rights in Vietnam. At the junction of these partnerships, The 88 Project was conceived in 2012.

The group takes its name from Article 88, one of the provisions of the 1999 Criminal Code traditionally used to prosecute activists. The 88 Project’s logo is a pair of handcuffs, which also represents the number ‘88’. According to their website, “the slightly open handcuff in our logo symbolizes the fact that not even prison bars can hold back the ideas of hope, human rights, and democracy.”

From left to right: Ella Gancarz, Huong Nguyen and Kaylee Uland, the founders of The 88 Project. Source: the88project.org.

Over the years, the members have volunteered and worked part-time, on top of their full-time jobs, to put together a weekly newsletter reporting and analyzing the news.

“I believe that regardless of how busy we are if we care enough about something, we can make time for it,” Huong responded in an email. “I am grateful that our team members care enough about our mission to dedicate the time for the project despite their busy career and personal life.”

Kaylee, who is now research director, was the driving force behind the recent expansion of their Database of Persecuted Activists in Vietnam, which now has functions that make it easier for users to navigate. The team has also unveiled the Map of Human Rights Violations.

“We wanted to allow users to interact with the data in multiple ways, depending on their needs and learning style,” Kaylee said.

Although Kaylee doesn’t speak Vietnamese, she is proud to be part of a team that provides an up-to-date English-based source of news on human rights issues, political prisoners, and activists at risk in Vietnam.

“One of our largest challenges has always been gathering, verifying, and processing data from inside Vietnam,” she said. With Huong’s network and Vietnamese language skills, the 88 Project has maintained a strong backbone of research integrity through carefully vetting the information that goes into their news, database, and map. The group also takes security precautions to protect their sources, in-country contributors, and data.

Online activity is heavily monitored and independent media does not exist in Vietnam. According to the 2019 World Press Freedom Index released by Reporters Without Borders, Vietnam sits at #176 out of 180 countries in terms of freedom of the press, one notch higher than China but one below Sudan.

Despite the challenges facing human rights defenders in Vietnam, the 88 Project finds success in big and small ways, such as when its work is used to advocate for the release of prisoners or when the nonprofit organization is cited in news and journal articles.

“There can be a lot of bad news before you get to hear any good news,” Kaylee said in an audio recording with Memria and the Norwegian Human Rights Fund. “But as a privileged person, as a white, educated, female American, the least I can do is to try to use my voice in some way to bring the very powerful and strong, but unfortunately, silenced voices of human rights defenders working on the front lines to a larger audience.”


Linh Nguyen is a contributor to The Vietnamese. Linh can be reached at linhnguyen1251992@gmail.com and Twitter @LinhVietnam4.

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Freedom of expression

Vietnam: Lawyer Disbarred For Speaking Ill Of Regime and The Communist Party

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Lawyer Vo An Don. Photo credits: Tuoi Tre newspaper.

“I have lost my license to practice law forever, with no apparent recourse available,” Vo An Don, one of Vietnam’s most well-known lawyers in recent years, lamented on Facebook on April 9, 2019. Last week, a high court in Danang ruled that the minister of justice’s decision to affirm his disbarment in 2018 remained effective and final.

The 42-year-old lawyer from Phu Yen province, however, is widely recognized for his fierce advocacy. In the past five years, Don took on cases involving some of the more popular political dissidents, such as blogger Mother Mushroom. But he gained the most public attention when he represented the family of Ngo Thanh Kieu,  a man who died while in custody after being beaten by the police in 2014. Don had demonstrated tireless efforts in bringing those who committed police brutality to justice in Kieu’s case. Yet on November 26, 2017, he was disciplined by his provincial bar association, and his bar license was taken away. In April 2019, the People’s High Court in Danang sided with the disciplinary decision and let the decision stayed.

According to Tuoi Tre newspaper, the reason for the disciplinary action was because of Don’s “abuse of democratic freedoms to write and to give interviews to foreign press and broadcasters to defame lawyers, the prosecutorial bodies, the (Communist) Party and the State of Vietnam with the intent to incite, propagandize, and misrepresent the truth which had negatively affected the reputation of the Party, the State, the prosecutorial bodies, and other Vietnamese lawyers.”

The Phu Yen Provincial Bar Association’s decision to disbar him came only a few days before the appeal trial of Mother Mushroom, which was on November 30, 2017. Don stated at the time in an interview with BBC-Vietnamese that such a decision was probably politically motivated.

It was not the first time, however, that his local bar association had attempted to discipline Vo An Don. In another interview with RFA in 2014, Don already disclosed that the Phu Yen Provincial Bar Association had tried, unsuccessfully, to disbar him a few times during his representation of the family of Ngo Thanh Kieu. But Don was unfazed and continued with the case, successfully bringing the offending officers to justice.

The case of Ngo Thanh Kieu was probably the first one in recent years where the court convicted a group of police officers for causing death to a suspect in custody. Public opinion, however, was split about the sentences handed down to the former police. Some people thought that the jail terms were too light as the longest one was only a five-year-imprisonment. At the same time, many people also saw Vo An Don as the lawyer who fought for the people’s rights and stood against what they perceived as a corrupt system.

The unintended popularity could be the root of the troubles that later followed the lawyer, who practiced law in one of the poorest areas in Vietnam. Don is often dubbed the “farmer lawyer” in social media because he still has to continue farming to support his family. Practicing law in an honest way, he said, cost him opportunities to “get rich” because he refused to be part of the widespread corruption in Vietnam’s judiciary. His popularity and his candid words about the profession together made him an unpopular person among his fellow attorneys. His allegation of corruption among lawyers was one of the statements that cost him his bar license, as reported by The Law newspaper in Ho Chi Minh City on May 24, 2018.

After the Phu Yen Provincial Bar Association issued its disciplinary decision on November 26, 2017, Vo An Don petitioned the Vietnam Bar Federation in December 2017 for a review.  Over 100 Vietnamese lawyers signed a petition asking the Federation to stand by its member’s freedom of expression and stated that the disciplinary action would be a dangerous precedent for the law profession. The Federation still rejected his petition on May 21, 2018.

Don continued to appeal his case with the Ministry of Justice later last year, but the minister of justice also decided against him.

Finally, in December 2018, Don initiated a lawsuit against the administrative decision to uphold the disciplinary action by the minister of justice. But as stated, the court system also did not side with him and effectively allowed the disbarment to remain in effect. The high court in Danang agreed that the dismissal of Don’s case by a lower court was proper.

Both courts had reasoned that the minister of justice’s decision to uphold the disbarment was done within a professional and social organization – the Vietnam Bar Federation. Such a decision did not fall under the categories of subject matters that could be decided in a lawsuit against an administrative order.

At this time, even Vo An Don does not seem to think that there could be any other recourse for him. In the meantime, Don’s case has raised sufficient concerns about the freedom of expression of lawyers in Vietnam and whether their human rights will continue to be subjected to professional disciplinary actions.

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Human Rights

Online Campaign “If not NOW then WHEN?” Seeks To Stop Sexual Abuse In Vietnam

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Vietnamese Facebookers supported the "If not NOW then WHEN?" campaign. Photo Credits: Facebook Ngoc Diep.

An uncommonly successful online campaign is happening in Vietnam with thousands of signatures and with momentum is still going strong. The campaign – “If not NOW then WHEN?” – initiated by seven civil society groups and organizations on Change.org, is the Vietnamese people’s latest and loudest response to a series of highly publicized cases of sexual abuse and violence against women and children uncovered recently in the country.

In addition to signing this petition, hundreds of Facebookers also changed their avatars to include a frame with the slogan “If not NOW then WHEN?” and the hashtag #nhanpham200k (dignity200k) to promote this campaign.

The “200k” hashtag refers to the 200,000 VND amount that the Hanoi police has fined the perpetrator in a recent sexual assault case in March 2019. Although the perpetrator was captured on an elevator’s security cameras while assaulting a woman by kissing her on the mouth, the authorities decided to treat the case as an administrative violation and did not file charges against him. Such a decision has angered the entire nation that has watched the story where his criminal actions unfold on social media, leading some activists and organizations to decide to take action.

The “If not NOW then WHEN?” campaign was launched within a few days after the administrative fine of 200,000 VND was made public. And because the organizers want to stress that a person’s dignity is worth more than the 200,000 VND fine, they have included the hashtag #nhanpham200.

Citing loopholes in the law which allow for unjust decisions such as the 200,000 VND case, the campaign calls on citizens to demand Chairwoman Nguyen Thi Kim Ngan and other members of Vietnam’s National Assembly to take action and change the laws. Their goal is to appeal to the legislative branch to make changes in the Penal Code so that it would be more effective in both punishing the perpetrators in sexual harassment and sexual violence cases and preventing future sexual crimes.

According to Facebooker Ngoc Diep, one of the first activists who has initiated this campaign, the campaigners will collect signatures until early May 2019. Then, they will send them directly to the National Assembly before the beginning of their next congressional meeting – which is expected to commence on May 20, 2019.

By April 9, 2019, more than 13,000 people have signed the petition even though Change.org recently has been blocked in a few areas in Vietnam. It means that those who have signed the petition from Vietnam must take an extra step, which is to get over the firewall before they can add their names to the petition.

It also means that the demands contained within the petition are of great concern for a lot of Vietnamese people.

Why is there such a tremendous response from the public to this petition that led to so many people taking the time and making an effort to make a point about this issue?

Ngoc Diep explained that the campaign has identified with the people’s realization that there are loopholes in the law, which renders the system ineffective in bringing justice to the victims of sexual harassment and sexual abuse in the country.

Recently, several cases of sexual attacks on women and children have caused outrage in society, and yet the legal system was unable to bring the perpetrator to justice. The case in the elevator with the 200,000 VND fine was just one of many such cases.

In another case, a teacher was accused of inappropriately touching his fifth-grade students, but the authorities claimed that his conduct did not fall under the current definition of sexual abuse. The teacher went unpunished.

A suspect in a brutal beating and raping of a 9-year-old girl was allowed bail because the authorities found his conduct did not fall under the “extremely severe” category that would demand pre-trial detention.

Just a few days after the petition “If not NOW then WHEN?” had started, another video clip appeared on social media showing a toddler being grabbed and kissed by an older male stranger in an elevator in Ho Chi Minh City.

The campaign and its supporters have felt an even stronger sense of urgency now, that such change is not only needed but is also inevitable. They want to raise public awareness about sexual harassment and sexual abuse and demand that “the legitimate rights and interests of the people” be protected.

As such, they are hoping that more signatures will be added to the petition in the upcoming days. It is hoped that the increasing public pressure that comes with the petition will then force lawmakers to face this current social crisis of sexual harassment and sexual abuse and institute changes.

Among the demands, the campaign emphasizes the critical role of civil society organizations in raising community awareness, as well as preventing sexual crimes.

The campaigners are especially concerned with the lack of specific and coherent definitions for a variety of conduct that would constitute sexual harassment in the current Penal Code. They also pointed out that the law should also provide for better protection mechanisms for victims of sexual abuse and violent sexual crimes.

The Penal Code is not the only one that needs changes, according to these activists. The Civil Code also needs to be reformed with the guidelines for victims to receive restitution being improved.

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