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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

Latest Review Under UN’s Human Rights Treaty Body Highlighted Vietnam’s Dismal Records

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The ICCPR Review of Vietnam During the HRC's 125th Session. Photo credits: Screenshot from UN's WebTV

“How do you explain or assess that Vietnam is ranked 175 out of 180 countries in the Reporters Sans Frontiers’ 2018 World Press Freedom Index?”

The question from Mr. Fathalla, a member of the UN Human Rights Committee, succinctly summed up Vietnam’s human rights situation, especially when it came to those rights involving the people’s freedom of expression.

Between March 11 and 12, 2019 and during their 125th session, the Human Rights Committee completed their review of Vietnam’s compliance and implementation of the International Covenant on Civil and Political Rights (ICCPR) in Geneva, Switzerland.

Vietnam was 13 years overdue in submitting its third report for the review, which was due in August 2004. As a result, there was a 15-year-gap between the last review and this recent one.

Nevertheless, the questions from the Committee during the two-day-proceeding painted an accurate, but very worrying picture of the human rights situation in the country right now.

The Committee questioned specific contents of the new 2018 Cybersecurity Law and the 2016 Press Law regarding their possible violations of Article 19 of the ICCPR on freedom of expression.

There was scrutiny over the independence of the judiciary in Vietnam where all judges seemed to be members of the Vietnamese Communist Party.

Lawyers were disbarred for being human rights defenders themselves, or just by merely took on politically sensitive cases, such as those involved police brutality and torture committed by the state’s officials.

The most recently amended Penal Code has taken a step further in limiting and curtailing the practice of law when it requires lawyers to make mandatory reports on their clients in a few specific instances – for example when it involves a “national security” crime – or risk being prosecuted themselves.

At the same time, the penal code sections relating to “national security” are used almost exclusively against human rights defenders and political dissidents in Vietnam. As such, the mandatory report requirement seems to especially deny this group of people their right to a fair trial with competent legal assistance.

There were also concerns from the Committee over the fact that police brutality had become more prevalent in recent years due to impunity.

Prison conditions in general, and especially the treatment of human rights defenders in prison, were also brought up repeatedly during the proceeding, where the Committee rejected Vietnam’s attempt to brush off the issue by offering evidence of some handful visits to prisons by foreign embassies in recent years.

The Committee’s members instead referred to the UN’s Committee Against Torture’s recommendations after the review of Vietnam under the Convention in November 2018, where numerous alarming issues regarding the poor conditions in Vietnam’s prisons were addressed, such as the use of shackle and solitary confinement.

Vietnam was named as one of the world’s top executioners in 2016 by an Amnesty International’s report on the death penalty, after the Ministry of Public Security released some rare statistics in February 2017, stating that 429 prisoners were executed between August 8, 2013, and June 30, 2016, at an average rate of 147 executions per year.

At the review, facts involved the wrongful convictions involving two death-row inmates, Ho Duy Hai and Le Van Manh, were also addressed in details by members of the Committee.

The rights of indigenous people in Vietnam also took center after reports on their religious persecution and forced statelessness were submitted to the Committee in advance by NGOs working on these issues. Among them were Boat People SOS, Viet Nam Coalition Against Torture (VN-CAT), Council of Indigenous Peoples in Today’s Viet Nam (CIP-TVN), The Advocates for Human Rights and Tai Studies Center, Khmers Kampuchea-Krom Federation, and Hmong United for Justice.

The UN received close to thirty shadow reports from civil society organizations before the review, which included both independent groups and NGOs that have an affiliation with the Vietnamese government.

The Human Rights Committee is expected to issue their concluding observations in the coming months.

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Human Rights

EU Officials Raised Concern Over Worrying Human Rights Situation In Vietnam

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EU Commissioner for Trade Cecilia Malmström and representatives from independent Vietnamese CSOs. Photo Credits: Commissioner Malmström's official Twitter account.

“The human rights situation in Vietnam is worrying,” according to Commissioner for Trade of the European Union, Cecilia Malmström, after her meeting with independent Vietnamese civil society organizations on March 14, 2019.

When announcing the adoption of the EU-Vietnam trade and investment agreements (EV-FTA) in October 2018, Commissioner Malmström had hoped that such agreements would “help spread European high standards and create possibilities for in-depth discussions on human rights and the protection of citizens.”

However, during recent months, the human rights situation in Vietnam did not improve.

Instead, it became more concerning.

Commissioner Malmström is not the only EU official who has expressed concerns over the worrying trend of suppression on human rights in Vietnam in recent months.

32 MEPs from across the political spectrum of the EU Parliament signed a letter back in September 2018, calling on the EU to demand specific human rights improvements from Vietnam before the ratification of the EV-FTA.

EU Spokesperson on Foreign Affairs and Foreign Policy, Maya Kocijancic, also confirmed in an interview with Radio Free Asia earlier this month, that during the 8th EU-Vietnam Human Rights Dialogue held in Brussels on March 4, 2019, the EU had addressed specific cases of prisoners of conscience with the Vietnamese delegation.

Ms. Kocijancic also stated during the same interview that the annual dialogue “raised a wide range of issues related to freedom  of expression, cybersecurity, the death penalty, environmental and labor rights, cooperation within the United Nations framework.”

As of today, The 88 Project’s database documented 21 Vietnamese activists are held in pre-trial detention. There are 218 other activists currently serving a prison sentence; among them, 30 are female activists and 51 indigenous political prisoners.

According to VOICE (Vietnamese Overseas Initiative for Conscience Empowerment), one of the organizations attended the meeting with Commissioner Malmström, the unconditional and in-country release of Vietnamese prisoners of conscience must be the first human rights benchmark before the ratification of the EV-FTA.

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Human Rights

Wife of Arbitrarily Detained Facebooker: He Only Exercised His Constitutional Rights

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Tran Thanh Phuong and his wife, Le Thi Khanh, with one of the couple's daughter. Photo courtesy: Le Thi Khanh.

The Prime Minister of Vietnam, Nguyen Xuan Phuc, announced today at a preparatory meeting for the DPRK-US summit in Hanoi that the country needs to “prove to the whole world that it is peaceful, friendly and orderly … as (the core of) its culture, a way of life of Vietnamese people.”

The price to pay for such an image could very well be the freedom of those who dare to exercise their constitutional rights like Le Thi Khanh’s husband, Tran Thanh Phuong.

For almost six months, Le Thi Khanh, a garment maker in Ho Chi Minh City, has not been able to see her husband who was taken away by the local authorities since September 1, 2018.

Her husband is Tran Thanh Phuong, a Facebooker who has been in police detention for attempting to participate in a protest during the celebration of Vietnam’s National Day.

As a pre-emptive strike, the police “invited” Phuong to come to the local station to talk to them, but they then detained him without a formal arrest warrant, according to his wife.

At first, Khanh could still bring her husband food and meet him once a day at the local police station of their ward.

But on September 7, 2018, when she went to see her husband, the police told her they had transferred him to a different location yet refused to tell her where.

Khanh then went to the District’s Police Department to look up her husband’s whereabouts.

There, the police asked her to provide them with her marriage certificate before allowing visitation. Once she did, they promised her that she would get to see him on October 10, 2018.

Came October 10, 2018, Khanh packed some food to bring to her husband with high hopes that she could see him, but again she was disappointed.

The District’s police told her they had transferred him to No. 4, Phan Dang Luu Street which is the detention center under the Ho Chi Minh City Police Department, The Security Investigative Unit.

She immediately went to No. 4 Detention Center and was able to confirm that her husband was, indeed, held there.

Since then, she was only able to send him food every two months, but the authorities have yet to allow visitation.

She also has no idea what crimes her husband has been charged with because no one would tell her anything.

But Khanh was aware that Phuong was using his Facebook to look up information relating to Vietnam’s Constitution, as well as the exercise of their constitutional rights.

“My husband often read different groups’ postings on Facebook about disseminating our Constitution. He said we should read to gain our own knowledge so that when the police arrest us, we could know what rights we have and demand them,” Khanh told us.

Not being to know how her husband has been doing was an ordeal which Khanh went through in the past six months while trying to make end’s meet to raise the couple’s two daughters, entirely on her own now.

Tran Thanh Phuong has effectively been held incommunicado by various police forces in Ho Chi Minh City since September 7, 2018.

Khanh also told us that on October 15, 2010, the police even tried to summon her 13-year-old daughter to come in for questioning on the 19th regarding their investigation of the case.

She, of course, refused to comply with the outrageous request.

Phuong was alleged to be a member of a dissident group calls “Constitution” (Hiến pháp).

The group’s members have been arrested and detained arbitrarily by the Vietnamese authorities from September 2018 to date.

While the members acknowledged that they participated in the June 10, 2018’s mass protest against the then draft bills of the cybersecurity and the Special Economic Zones law, all information surrounding their activities – including those coming from the authorities – could not openly show their criminal liability.

One of them has been arrested, tried, convicted and sentenced to five-year-imprisonment.

In that case, the defendant – Huynh Truong Ca – was alleged by the government to have live-streamed 40 clips on Facebook criticizing the government, the Communist Party, and calling on people to exercise their constitutional right: participate in demonstrations.

Such conduct, however, not only could not constitute the legal merits of a crime but also was a person’s political opinion which international human rights law protects.

Notwithstanding international law standards, the government of Vietnam often violates even its constitution while suppressing people during protests and arresting them.

The 2013 Constitution guarantees all Vietnamese people the right to assemble and to demonstrate peacefully.

The absence of a valid constitutional protection mechanism, however, has allowed the government’s unlawful activities continued.

Crowd control’s measures in Vietnam were recently broadcasted internationally when the Hanoi’s security police detained and questioned the Kim Jong-un and Donald Trump impersonators duo ahead of the DRPK-US summit.

The police’s intention to avoid any remote possibility of people gathering during the event was apparent when they demanded the two’s itinerary while in Hanoi and had since surveilled their movements.

Spontaneous gatherings in public are frown upon by the VCP because its leaders could not and would not risk the chance – however slim – of having a protest breaks out, especially during a highly observed event like the Kim-Trump peace summit.

Since September 2018 to date, The Vietnamese has documented over a dozen incidents of arbitrary arrest and detention. More than half of them involved the members of the Constitution group where Tran Thanh Phuong is a member.

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