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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

Tran Huynh Duy Thuc: A Decade Behind Bars

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Nine years ago, on January 20, 2010, the People’s Court of Ho Chi Minh City convicted Tran Huynh Duy Thuc, Le Cong Dinh, Le Thang Long and Nguyen Tien Trung under Article 79 of the 1999 Penal Code for “subversion against the people’s government.”

Tran Huynh Duy Thuc was sentenced to 16 years in prison and five years probation which technically meant five more years under house arrest.

Thuc was arrested in May 2009, and for almost a decade, the unique case of a successful entrepreneur turned dissident continued to be the highest profile among the hundreds of political prisoners and dissidents in the country.

Article 79 has faced harsh criticisms from the international community.

During Vietnam’s 2nd UPR cycle in 2014, the Vietnamese government accepted the recommendations to amend this and other arbitrary penal codes under the “national security” section, to ensure they would not be used to infringe the people’s human rights.

However, in reality, the amended Penal Code of 2015 did not change the situation in any way. The crime “subversion against the state” remains as Article 109 under the new code.

Thuc’s indictment described his criminal conducts included the act of forming and persuading people to join the Chan research group, to write and publish online articles defaming the government, creating division among the Vietnamese Communist Party.

The prosecution further alleged that he had attempted to reach out and establish a relationship with leaders of the VCP, with the intent of re-shaping their political opinion to change the regime, and that he had planned to manufacture a document named “The Vietnam Path” to subvert against the State.

The Vietnamese government’s point of view on “subversion against the State” is often not shared by the international community, especially democratic nations in the West.

The heart of the problem lies in Section 1, Article 4 of Vietnam 2013 Constitution which states:

The Communist Party of Vietnam – the Vanguard of the Vietnamese working class, simultaneously the vanguard of labourers and of the Vietnamese nation, the faithful representative of the interests of the working class, labourers and the whole nation, acting upon the Marxist-Leninist doctrine and Ho Chi Minh’s thought, is the leading force of the State and society.

Because of this political monopoly, the VCP and the State of Vietnam became interchangeable in the mind of Hanoi’s regime.

The leaders of the VCP would not hesitate in sentencing people who hold a different political philosophy than theirs to prison for decades because questioning the ultimate leadership of the Party equates “overthrowing the government.”

This viewpoint effectively puts the VCP at odds with the universal values of human rights, in particular, the right to freedom of expression where holding a different political opinion, calling for pluralism and a multi-party system cannot be deemed criminal.

In Tran Huynh Duy Thuc’s case, the defendants were also found guilty because the government further alleged that they were members of the Democratic Party and had started to write a new constitution.

As one may correctly guess, organizing a political party in Vietnam – as in Thuc’s case – could also be construed as an act to “subvert the government.”

Vietnam, at press time, has only one political party.

Thuc has received the offer to be released into exile on numerous occasions, but he turned them down, stating that he would finish his full prison term instead of having to leave his home country indefinitely.

The offer to be released into exile to political prisoners in Vietnam is not a release.

It is more like a suspension of the sentence for either medical or humanitarian reasons. The released prisoners would not be able to come back to Vietnam, effectively being banned from their own country.

When the Penal Code was amended, Thuc’s attorney has argued that the government should release him according to Section 3 of Article 109. Because at most, the evidence provided by the prosecution could only show that the defendants were in “preparation” to commit a crime under Section 3, with the maximum sentence of five years.

His petition to review the case has gone unanswered.

On December 13, 2018, Julie Ward, a Member of the European Parliament representing the North West of England, sent a letter to the President of Vietnam – Nguyen Phu Trong – (who is also the leader of the VCP), calling for an unconditional, in-country release of Tran Huynh Duy Thuc. The letter addressed the concerns over allegations from his family that he had suffered abuse in prison.

A group of the EU Parliament’s MEPs, including Ms. Ward, has stated in more than one occasion that the release of prisoners of conscience like Tran Huynh Duy Thuc would be a critical condition for them to support the EU-Vietnam FTA.

On this 9th anniversary of his conviction, U.S. House Representative Zoe Lofgren also called for Tran Huynh Duy Thuc’s release and denounced the mistreatment of political prisoners by Vietnamese authorities.

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Land's Right

Timeline Of The Loc Hung Garden Incident

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Loc Hung Garden After the Forced Removal on January 8, 2019. Photo Courtesy: Facebook Nguyen Tri Dung.

The forced eviction at Loc Hung vegetable garden in Saigon on January 4 and 8, 2019 joined the long list of land disputes between the people and the State of Vietnam. We are putting together a timeline of events that have happened to date and will continue to update as this story develops.

December 20, 2018

News about a possible forced eviction came about on December 20, 2018, on social media. Blogger and human rights activist, Pham Doan Trang, reported on her Facebook that according to the residents at Loc Hung, 50 local police officers from different forces in Ward 6 of District Tan Binh showed up at the garden area, demanding the residents to allow them to perform an administrative check. By 1:30 p.m., the police withdrew.

December 29, 2018

The People’s Committee of Ward 6 issued an announcement, stating that they would begin a forced removal of all illegal constructions that were built after January 1, 2018, which also notified the residents that the time for such removal would take place within 90 days from January 2, 2019. It is unclear if all residents received the announcement.

January 3, 2019

During the night of January 1, 2019, the residents announced on social media that the local authorities have brought in barbed wires, frequency disrupting machine, forklifts, and bulldozers to the garden’s area.

January 4, 2019

At daybreak, a group of some 400 people from different police and security forces showed up at Loc Hung and began to block street access to the garden, starting from the Bay Hien intersection to Thanh Thai and To Hien Thanh streets. The removal of some 40 houses lasted from 7:30 A.M. until 6:00 P.M., during which time 20 people were arrested and taken to the Ward 6’s police station for opposing it.

The residents insisted that they had never received any order for such removal.

January 7, 2019

During the night, hundreds of police officers and civil security personnel were ordered to go to Loc Hung where the public speakers – on high volume – were announcing the government would only remove illegally built constructions. Cao Ha Chanh, one of the persons serving on the board of representatives for the families living at Loc Hung, recalled that the removing force still did not provide the people with any legal documents regarding the order to remove before they started to take down the homes.

January 8, 2019

Starting at 5:30 a.m., approximately 1.000 officers from different police forces and others entered Loc Hung garden. Similar to what happened on January 4, 2019, the authorities blocked off the streets leading to the area by putting up the barbed wires. To gain entry, people must show the police their identification. As soon as they arrived, they began arresting those residents identified as “leaders” in the community, including Cao Ha Truc.

Electricity and internet were cut off in the area. By 7:30 A.M., the forklifts and excavators were put to work as the authorities began to tear down the residents’ homes. By the end of the day, all of the houses at Loc Hung garden were demolished. The residents estimated there were about 200 homes.

Among the now homeless people were some 20 disabled veterans who served in the former South of Vietnam’s military who do not have a family and they were being taken care of by the residents and the priests from the Redemptorists Church.

On the same day, Amnesty International – Southeast Asia office – publicly denounced the Vietnamese government’s decision to remove the houses forcefully belong to Loc Hung’s residents.

January 9, 2019

In the early hours of the day, the police released Cao Ha Truc and other residents who got arrested the day before.

The Ho Chi Minh City Police Department’s newspaper was among the first state-owned media reported on the removal of Loc Hung Garden’s houses, which the government estimated to be around 120 in total. Accordingly, the People’s Committee of Ward 6 stated that the removal of the illegal constructions was carried out under proper legal procedures.

January 10, 2019

Tuoi Tre and a few others also reported the story, mostly to allow the District Tan Binh’s authorities to make their argument public, that they have only “enforced the removal of illegal constructions on a public area and not a forced eviction in a land recovery matter.”

Further, the People’s Committee of Tan Binh District confirmed with the media that they had followed the proper legal procedures when organizing the enforcement team to take down a total of 112 construction projects without a permit at Loc Hung between January 4-9, 2019.

January 11, 2019

Chris Hayes, a Labor Party’s member of the Australian Parliament, and a Vietnamese-Australian bishop, Vincent Nguyen Van Long, both called on the Vietnamese government to cease from enforcing the removal of Loc Hung resident’s houses, stating that it is a violation of the people’s freedom of religion and belief.

On the same day, the Secretary of the Vietnamese Communist Party’s Ho Chi Minh City division, Nguyen Thien Nhan spoke about Loc Hung for the first time.

VnExpress quoted him saying: “there are many things which should be normal, but those who are plotting against the government would still abuse them to incite (others). As seen in a few cases in 2018, the city had learned from our experience so that we would not confront the people, but we will use propaganda activities to let them understand.”

January 12, 2019

The local authorities put up a large panel in the area, announcing a public construction was going to be developed after the removal team had flattened out the entire Loc Hung vegetable garden. On the same day, some of the residents met with a group of lawyers who have expressed interest in providing legal assistance.

January 13, 2019

The Committee for assistance in the development project regarding the public school at Ward 6, District Tan Binh, HCM City (the project to be developed at Loc Hung) announced the assistance policy that the District was going to be provided for those who were farming on the land. Accordingly, on January 10, 2019, the People’s Committee of HCM City approved the assistance proposal for those who have been using the land at Loc Hung garden for agriculture purpose at the rate of 7,055,000 VND/m2.

Attorney Trinh Vinh Phuc published a few photographs of the documents provided by the residents of Loc Hung in support of their claim for legal possession of the land.

January 14, 2019

At 9:00 A.M. a group of religious leaders of the Interfaith Council together with some of the priests from the Redemptorists Church in Saigon went to visit the residents of Loc Hung. In the afternoon, Bishop Paolo Nguyen Thai Hop also came to visit at around 3:00 P.M. During both the morning and afternoon visits of these religious leaders, the local government used loud public speakers to interfere with their prayers and speeches to the residents.

Summary of Factual Disputes Regarding Loc Hung:

The disputed land consists of 4.8 hectares in Ward 6, District Tan Binh, which includes parcels 126-5, 128-5, 129-5, and 131-101-5 according to the No. 12 Map (of the old recordings). The location of the land is as follows: the North West touches Alley 9/24 Cach Mang Thang Tam Street, the South West touches Hung Hoa Street, The South East touches Chan Hung Street, and the North East touches the current existing residence.

The People’s Committee of Tan Binh District claims this land is public because, before April 30, 1975, it was under the management and control of the former Republic of South Vietnam’s Department of Telecommunication and was used as a telecommunication tower. After April 30, 1975, the new government took control of the land according to Decision 111/CP dated April 14, 1977, issued by the Government Council, and continued to use the telecommunication tower.

On the contrary, Loc Hung’s residents claim that the original owner before April 30, 1975, was the Catholics Church of Vietnam who had granted them the right to farm on such land. After April 30, 1975, the residents continued to live and farm on the land undisrupted and without dispute with other people. After the Law on Land 1993 took effect in Vietnam, the residents have been petitioning the government in almost 20 years for the right to possess and usage of the land. However, the government did not respond to their petitions.

(To Be Continued)

References:

Loc Hung Vegetable Garden Continues To Be Harrassed (RFA-Vietnamese)

Loc Hung Vegetable Garden “Devasted after Forced Removal” (BBC-Vietnamese)

Loc Hung Vegetable Garden Under Siege (BBC-Vietnamese)

Forced Removal of 110 Households Was Done According to Law (HCM City Police Department Newspaper)

Forced Removal of 112 Illegally Constructed Houses in The Vegetable Garden (Tuoi Tre)

Tan Binh District Speaks About the Forced Removal at ‘Loc Hung Vegetable Garden’(Vietnamnet)

Australian MP and Vietnamese-Australian Bishop Speaks Up About Loc Hung Incident (RFA-Vietnamese)

HCM City Forced Removal of 112 Houses Built on Public Land (VNExpress)

Tan Binh District Provides More than 7M VND/m2 in Assistance for Loc Hung Vegetable Garden (Tuoi Tre)

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Human Rights

Vietnam Rings In 2019 with More Restrictions on Citizens’ Freedoms

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During the last week of December 2018, Vietnam’s state-owned newspapers flooded the country’s social media with articles on rules and tips for writing and blogging in a new era of internet usage, all in preparation for the 2018 Cybersecurity Law taking effect on New Year’s Day.

In the days leading to the country’s cyber D-day, on December 30, 2018, with the headlines “How to Write to Express your Political Opinion on the Internet without Violating the Law?” Tuoi Tre online newspaper essentially summarized the ultimate paradox for people living under one of the most repressive countries around the world.

While the article elicits opinions from a wide range of interviewees, from intellects and heads of certain IT firms to regular social media users, they all repeat the same government’s mantra: practice self-censorship and avoid criticism of the Party and the state, so that you can have the right to express yourself.

Like the headlines itself, the “opinion” of the group of people interviewed in this article seems to be blissfully ignorant of the international standards for freedom of expression, in particular, Article 19 of the International Covenant on Civil and Political Rights, where a government not only cannot criminalize people for stating their political opinions but is also not allowed to censor them.

It is not surprising that the article of Tuoi Tre did not consider critical opinions of the government to be worthy of political opinions and instead endorsed the same old government’s propaganda which had been recycled throughout the past seven decades, that one could have an opinion about anything in Vietnam, except those that criticize the Party and the government. After all, all newspapers in the country are considered to be the arms and legs of that propaganda machine.

Another leading newspaper in Vietnam, Thanh Nien, also published an article on December 29, 2018, warning people to steer clear of “The 14 Ways to Violate the New Cybersecurity Law” with the first paragraph declaring the use of social media “to gather and call on other people to incite disorder” among the prohibited acts. The language of this paragraph is nothing new; it is the same as Decree 38 which has been used for regulating public gatherings in Vietnam, an ordinance that legal experts in the country have repeatedly questioned its constitutionality since its issuance in 2005.

Praising the accomplishments of the Party and the state, as well as reciting their propaganda, are not only welcome but also considered to be parts of the Vietnamese journalists’ obligations according to the “Code of Conduct” published by the Vietnamese Journalists Association (VJA).

The VJA, however, is an organization formed by the government according to its Media and Press Law of 2016 (link in Vietnamese), and these obligations are statutory. The Vietnamese authorities may think that by legislating journalists’ conducts, it would give them the appearance of a society that respects the rule of law. However, in reality, perhaps the only thing such laws could further demonstrate would probably be the systematic abuse of press freedom in the country.

Nevertheless, the Vietnamese government is now ready to roll out the “code of model behaviors” for people who use social media in the new year, and the VJA has taken an extra step this past week with the announcement of its “Eight Rules for Journalists to Behave on Social Media” on December 25, 2018.

Among others, most notably is the requirement that journalists are not to “post any news, articles, pictures, or audio recordings on social media or repost speech and opinions in opposition to the way, policy, and guideline of the Party or the State.”

Not stopping at that, the new rules for journalists according to the VJA also require that while online, they are not going to “comment, give an opinion or share any information which contains the purpose of inciting or engaging others to react negatively, as well as those issues that are political, economic, cultural, societal, relating to defense security, and external affairs,…with complexity and sensitivity which need consensus as well as positive and constructive observation and behaviors for society”.

Effectively, the new arbitrarily worded regulations for journalists, when being applied together with the new cybersecurity bill, could mean that the sharing of any information considered to be critical of a proposed law, such as the still pending draft bill on the Special Economic Zones which ignited the nationwide protests in June 2018 for example, may be deemed illegal and criminal by the government starting in 2019.

At the same time, state-owned media in Vietnam also welcomed the news of the CP-TPP (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) taking effect at the end of December 2018. In the new year, Vietnam continues to push for the EU-Vietnam Free Trade Agreement to be ratified by the EU Parliament in March 2019. Both of these trade agreements demand serious improvement on the human rights situation in Vietnam, directly and indirectly.

However, in 2018, The 88 Project reported:

– Vietnam arrested 103 people (up from 43 in 2017)
– 120 activists were tried
– At least 22 of those who tried were females
– 35 had known religious affiliations
– 11 were sentenced to between 10 and 14 years
– Two received the sentence of between 15 and 19 years
– One person, Le Dinh Luong, was sentenced to 20 years

In total, 210 people are serving jail sentences for their peaceful activism in Vietnam with 19 more await trial.

Whether the Vietnamese government will yield to international pressure and improve its human rights records, or follows through and starts enforcing the new suppressive law on bloggers and journalists in 2019, the message from the activists’ community is unanimous: they will continue to write and express their opinions regardless. Before the Cybersecurity Law of 2018, Vietnam already has enough penal codes to send their political dissidents to prison for a long time.

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