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Human Rights

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 Trafficking

Q&A: What You Should Know About The Human Trafficking Situation In Vietnam

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Photo credit: VnExpress/Nguyen Phuoc Vu (background photo), U.S. Department of State (screenshot photo). Graphic: The Vietnamese Magazine.

On July 1, 2021, the U.S. Department of State released its annual global report on human trafficking. The 2021 Trafficking in Persons report ranked Vietnam as a “Tier 2 Watch List” [1] for the third consecutive year.

According to the placement guiding [2], governments that fully meet the Trafficking Victims Protection Act’s (TVPA) minimum standards to eliminate human trafficking are placed on “Tier 1.” In contrast, countries that fail to meet minimum standards but make a significant effort to comply are ranked as “Tier 2.” 

However, these Tier 2 countries also risk being placed on a “Tier 3 Watch List” if they do not take “concrete actions” to combat the increasing number of human trafficking victims or if they fail “to provide evidence of increasing efforts to combat severe forms of trafficking in persons from the previous year.” 

Without a further genuine effort to improve the current situation, Vietnam could be downgraded to “Tier 3,” which might lead [3] to restrictions on financial assistance from the United States, the freezing of officials’ assets, and restrictions on immigration.

Human trafficking map, East Asia & Pacific region. Source: U.S. Department of State.

What is Vietnam’s current situation?

In Vietnam’s case, the State Department declares that the Vietnamese government “does not fully meet the minimum standards for the elimination of trafficking but is making significant efforts to do so.”

The report acknowledges considerable efforts taken by Vietnam to eliminate human trafficking, including ramping up prosecutions against human traffickers, passing legal revisions to terminate hefty brokerage fees. Brokerage fees will make workers fall victim to debt bondage, and later they would be susceptible to forced labor. 

It also notices that Vietnam has enhanced worker protections, strengthened law enforcement, increased financial budgets to assist victims of trafficking, provided protection services for identified victims, and implemented extensive awareness programs in vulnerable ethnic communities.

Nevertheless, the country has not demonstrated sufficient effort regarding its anti-trafficking protocols, given the impact of Covid-19 on the overall capacity to combat illegal human trading activities, compared to the previous period. Furthermore, the report states that Vietnam has also fallen short on systematically identifying victims of trafficking, which results in “some victims [being] penalized for unlawful acts [that] traffickers [compel] them to commit.”

Who are the primary victims and offenders of trafficking activities?

The Blue Dragon Children’s Foundation, a non-profit charity that rescues and helps the victims of human trafficking in Vietnam, stated in a study [4] that over 60 percent of victims and traffickers come from ethnic minority groups, such as Hmong or Thai. Some of Vietnam’s northern border provinces, in which diverse groups of ethnic people dominate, witness the highest rates of illegal trafficking and border crossings.

According to the charity’s latest analysis [5], between 2012 and 2020, Hmong people accounted for over 32 percent of the total victims and 33 percent of the total traffickers, while only making up 1.4 percent of the country’s population.

Also, the traffickers, as well as their victims, share poor economic and educational backgrounds. Most of the prosecuted traffickers, around 80 percent, are illiterate or did not finish high school.

The lack of general knowledge about laws and human rights, coupled with grinding poverty, proves to be the main reason these people take up [6] trafficking or recruitment to generate extra income and “escaping” poverty.

At the same time, people between 19 to 25 years old are the most vulnerable to these illicit activities, while children under 16 account for 42 percent of the total number of trafficked victims. Based on gender, all of the 199 trafficked victims recorded by Blue Dragon were females. Meanwhile, male traffickers comprise nearly 60 percent of total prosecuted offenders.

In a majority of cases, the traffickers have close relationships with the victims. They could be their friends, family members, relatives, neighbors, or acquaintances.

Source: Blue Dragon Children’s Foundation. Graphic by South China Morning Post.

What are the common forms of trafficking?

Following the data compiled by the Blue Dragon Foundation, forced marriage and domestic servitude accounted for the majority of all prosecuted cases. The victims, mostly women, are often lured and misled by false promises of well-paid job opportunities in foreign countries, but they are eventually forced into marriage with Chinese men.

Other forms of human trafficking, which include [7] forced labor and commercial sex, are also ubiquitous.

Vietnamese workers, especially under labor export programs, are subject to forced labor when they cannot pay off their debts to their recruitment company. Meanwhile, some Vietnamese female workers travel to other Asian countries for brokered jobs [8] as hostesses in massage parlors, karaoke bars, or restaurants.

What are Vietnam’s prosecution laws against trafficking?

Overall, the Vietnamese government has displayed visible efforts in reinforcing its existing legal framework against human trafficking. The current anti-trafficking legislation [9] of Vietnam includes:

  • Article 150 of the Penal Code, which criminalizes labor trafficking and sex trafficking of adults. Offenders face up to 10 years of imprisonment and up to 100 million dong (US$4,330) in fines.
  • Article 151 of the Penal Code, which criminalizes labor trafficking and sex trafficking of children under 16. Offenders face up to 12 years of imprisonment and up to 200 million dong fines.

Despite being regarded as “sufficiently stringent” in the State Department’s report, current prosecution laws against trafficking in Vietnam still contain certain loopholes.

For example, the application of Article 150 to cases involving children between the ages of 16 and 17 remains ambiguous, leading them to be treated as adults. Therefore, the article does not fully constitute all forms of child trafficking.

Other notable shortcomings include the lack of law enforcement regarding domestic trafficking and forced labor, especially with male victims, and the insufficient training of law enforcement officers in handling such cases. These are some limitations that could hinder the country’s progress towards eliminating labor exploitation and the illegal activities of human trafficking.

What improvements could be made by Vietnam?

The State Department’s report proposed prioritized recommendations that the Vietnamese government could implement to improve the situation. 

These recommendations focus on:

  1. Bolstering collaboration with NGOs and civil society;
  2. Amending existing loopholes;
  3. Training law enforcement officials in domestic trafficking cases;
  4. Implementing policies;
  5. Increasing national funding for provincial-level authorities to assist victims of trafficking; and
  6. Inviting independent bodies to verify the government has terminated forced labor in rehabilitation centers.

Bibliography:

  1. Office To Monitor And Combat Trafficking In Persons. (2021, July 1). 2021 Trafficking in Persons Report: Vietnam. United States Department of State. https://www.state.gov/reports/2021-trafficking-in-persons-report/vietnam/
  2. Office To Monitor And Combat Trafficking In Persons. (2021a, July 1). 2021 Trafficking in Persons Report. United States Department of State. https://www.state.gov/reports/2021-trafficking-in-persons-report/
  3. Nguyen Dinh Thang. (2021, July 4). Buôn người: Việt Nam ở sát bờ vực chế tài theo luật Hoa Kỳ. Mach Song Media. https://machsongmedia.org/vietnam/chong-buon-nguoi/1727-buon-nguoi-viet-nam-o-sat-bo-vuc-che-tai-theo-luat-hoa-ky.html
  4. Sen, N. (2021, July 8). Young members of ethnic minority groups most at risk in Vietnam-China human trafficking trade: report. SCMP. https://www.scmp.com/week-asia/politics/article/3140227/young-members-ethnic-minority-groups-most-risk-vietnam-china
  5. Blue Dragon Children’s Foundation. (2021, July). Human Trafficking & Traffickers in Vietnam. Blue Dragon Children’s Foundation. https://www.bluedragon.org/wp-content/uploads/2021/07/Profile-of-trafficking-in-Vietnam.pdf
  6. Ibid., [4]
  7. Ibid., [1]
  8. RFA. (2021b, July 1). Việt Nam tiếp tục nằm trong danh sách cần phải theo dõi về tình trạng buôn người trong báo cáo của Bộ Ngoại giao Mỹ. Đài Á Châu Tự Do. https://www.rfa.org/vietnamese/news/vietnamnews/human-trafficking-report-vn-stay-in-watch-list-tier-2-07012021203901.html
  9. Ibid., [1]

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Death Penalty

A Spark Of Hope For Ho Duy Hai’s Family As New Alibi Emerges

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Photo credit (background): Canva. Photo credit (from left to right): Ho Duy Hai’s family, Nguyen Lan Thang. Graphic design: The Vietnamese Magazine

On June 24, 2021, Attorney Tran Hong Phong, the lawyer for Ho Duy Hai and his family in their petition for his wrongful death penalty case, published a letter on his Facebook account, providing a new alibi regarding the case. Five lawyers (including Phong), two journalists working for a law newspaper, and Ho Duy Hai’s family jointly signed the letter.

The letter, which had been previously sent to the Procurator of Supreme People’s Procuracy of Vietnam and the Vietnamese authorities, provides convincing proof [1] to demonstrate that Ho Duy Hai was not the murderer of two post office workers in Long An Province in 2008.

Alternatively, the new evidence shows that on the evening of January 13, 2008, Ho Duy Hai actually did not go to Cau Voi Post Office, where the murder took place, but rather attended the funeral of Ho Chi, also known as Tu Lan, a neighbor who lived just 500 meters from Hai’s house.

Furthermore, the new evidence also shows that Ho Duy Hai was at the funeral from 7:50 pm until 9 pm, which coincides with the time the Long An Police investigative agency alleged he had entered the Cau Voi Post Office, at around 7:30 pm, to murder the two victims at around 8:30 pm allegedly. Seven witnesses, who also attended the funeral, including the deceased’s wife, have confirmed this fact.[2]

Ho Duy Hai received a death penalty for his convictions of homicide and robbery, despite “serious procedural shortcomings”[3] and violations of the defendant’s right to a fair trial. 

This controversial and invalid case has set his family and their attorney on a decade-long journey [4] of calling for the suspension of his execution. They finally reached a cassation trial [5] in 2020, but Ho Duy Hai was once again declared guilty of the crimes and sentenced to death.[6]

Although the presumption of innocence has been recognized [7] in its 2015 Criminal Procedures Code, Vietnam has fallen short of actually practicing this principle in its criminal proceedings. Quite commonly, the number of cases and the speed at which a case must be solved dwarf the importance of proper due process to uphold a fair and just trial. 

A local lawyer explained [8] that investigative agencies could deploy “professional” methods to extract forced confessions from people since these agencies “often hold prejudices” against the accused. Also, earlier this month, the People’s Court of Dak Song District, in Dak Nong Province, held [9] nearly 60 “pretend” trials, to meet its quota for a local judge to be reappointed, without any real defendants or victims.

However, the new evidence provided by his attorney might prove that Ho Duy Hai was wrongfully convicted, which would be a spark of hope for both the defendant and his family as the possibility of retrial could be high.

To strengthen the validity of the new proof, Attorney Phong confirmed that all seven witnesses “voluntarily provided the information and confirmation letters to affirm that their testimonies are true and vowed to take full responsibility under the law […].” 

In their letter, the attorney and the signees demanded Vietnamese government officials expeditiously verify the evidence, review the cassation decision, release defendant Ho Duy Hai on bail while awaiting verification; and review and resolve their previous petitions and demands.

The case of Ho Duy Hai has drawn wide attention from both national and international audiences, as he was convicted of murder and later sentenced to death via an opaque and unfair trial.

Bibliography:

[1] RFA. (2021, June 25). Vụ án Hồ Duy Hải: Luật sư cung cấp bằng chứng ngoại phạm mới. Đài Á Châu Tự Do. https://www.rfa.org/vietnamese/news/vietnamnews/ho-duy-hai-case-lawyer-provides-new-proof-06252021081856.html

[2] HCMC Reporters. (2021, June 25). Vụ án tử tù Hồ Duy Hải: Luật sư cung cấp tình tiết bất ngờ. Dân Việt. https://danviet.vn/vu-an-tu-tu-ho-duy-hai-luat-su-cung-cap-tinh-tiet-bat-ngo-2021062515064789.htm

[3] Will, N. (2019, December 3). After Decade of Petitions, Vietnam to Re-consider Case of Death Row Inmate Ho Duy Hai. The Vietnamese Magazine. https://www.thevietnamese.org/2019/12/after-decade-of-petitions/

[4] Vi, T. Q. (2019, September 29). Wrongful Death Penalty Cases And The Families That The Inmates Left Behind. The Vietnamese Magazine. https://www.thevietnamese.org/2019/09/wrongful-death-penalty-cases-and-the-families-that-the-inmates-left-behind/

[5] Thereporter. (2020a, May 7). Ho Duy Hai’s Cassation Trial. The Vietnamese Magazine. https://www.thevietnamese.org/2020/05/ho-duy-hais-cassation-trial/

[6] Thereporter. (2020b, May 9). Ho Duy Hai’s Case Reaffirmed, Sentenced to Death Again. The Vietnamese Magazine. https://www.thevietnamese.org/2020/05/ho-duy-hais-case-reaffirmed-sentenced-to-death-again/

[7] V.L.L.F. (2018, June 1). Legal experts discuss presumption of innocence, due process principles in criminal proceedings. Vietnam Law and Legal Forum. https://vietnamlawmagazine.vn/legal-experts-discuss-presumption-of-innocence-due-process-principles-in-criminal-proceedings-6244.html

[8] Thi, D. (2021, June 25). Liệu có tái thẩm vụ án Hồ Duy Hải với chứng cứ ngoại phạm mới? Đài Á Châu Tự Do. https://www.rfa.org/vietnamese/in_depth/will-the-ho-duy-hai-case-be-retrial-with-new-alibi-dt-06252021114054.html

[9] Duong, D. (2021, June 6). Tòa huyện lập gần 60 vụ án “ảo” để. . . một thẩm phán được bổ nhiệm lại? Dan Tri. https://dantri.com.vn/xa-hoi/toa-huyen-lap-gan-60-vu-an-ao-de-mot-tham-phan-duoc-bo-nhiem-lai-20210606162322706.htm

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Internet Freedom

Vietnam: The New Code Of Conduct On Social Media Is Not Legally Binding

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Decision 847 from the MIC. Photo: Luat Vietnam, The Independent. Graphic: Luat Khoa Magazine.

On June 17, 2021, Reuters reported that Vietnam announced a national code of conduct for social media. This new code would be the national guidelines on social media behavior in Vietnam, where users are encouraged to post positive content about the country. There are certain prohibitions for social media users and companies, requiring that social media providers in Vietnam follow Vietnamese law when “requested by authorities to remove content from their platforms.” 

This national code of conduct is Decision 847/QĐ-BTTTT (Decision 847), and it was issued by the Ministry of Information and Communications (MIC).

There are specific prohibitions throughout this decision, and it also lists the individuals and entities that are subject to the regulations. Yet, at the same time, the extent to which it is a legally binding document and how the government will enforce it is still ambiguous. 

Nevertheless, we can safely conclude that right now, under Vietnamese law, Decision 847 is NOT a legally binding document.

Why is it not legally binding?

This so-called national code of conduct on social media was issued as a decision from the minister of the MIC. These kinds of decisions in Vietnam are not legally binding documents under the Law on Promulgation of Legislative Documents 2015

Under its Article 3.1, the Law on Promulgation of Legislative Documents 2015 requires that legally binding documents should be “general rules of conduct, commonly binding, and applied repeatedly to agencies, organizations and individuals nationwide or within a certain administrative division, promulgated by the regulatory agencies and competent persons in this Law, the implementation of which is ensured by the State.” 

A minister of any ministry is deemed incompetent to promulgate legal documents if he or she issues only a decision, such as this Decision 847. Only a circular or a joint circular issued by a minister will be deemed legally binding documents. Therefore, Decision 847 cannot be treated as a legally binding document under Vietnamese law. 

Decision 847 cannot regulate social media users and providers.

Technically, only binding legal documents can regulate its subjects, but Decision 847 is quite ambiguous. 

Article 2 of Decision 847 clearly defines the subjects that are being regulated, including official departments, state employees and officials who use social media. It also states that organizations and individuals who use social media and social media providers are all subjected to its regulations.

Yet, under Article 8, which sets the implementation of Decision 847, it states, “the social users and companies are encouraged to fully execute the content of this decision and propagandize it to other organizations and individuals who are also on social media.” 

If Decision 847 only encourages its subjects to follow and propagandize it, it completely defeats the purpose of regulating users and companies on social media in Vietnam. Moreover, the vagueness and ambiguity of this decision reaffirm that it should not be a legally binding government document.

Does the MIC want to regulate all the people, companies, and other governmental agencies in Vietnam with Decision 847? 

Typically, a decision from a minister would only affect his or her ministry. However, in developing this national code of conduct on social media, is it the intent of the minister of MIC to instruct and direct how citizens and other government departments should act on social media according to his standards of positivity and morality? Is it his or the government’s duty to coach citizens on behaving in our everyday life? 

Who will regulate the ethical and cultural values for the entire Vietnam? This country already lacks an independent court system, and this decision does not have any judicial oversight. So who will get to decide what ethics and culture are if Decision 847 is enforced? Is it the government’s decision to dictate good ethics, and what is a positive culture for Vietnam on social media? What will be the meaning of our freedom of expression if we actually behave and live like this?

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