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Has Vietnam Already Violated the To-Be-Ratified Free Trade Agreement with the EU?

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Photo courtesy: Norfolk Chamber of Commerce.

After Hoàng Đức Bình’s 14-year sentence was affirmed by an appellate court in Vietnam on April 24, 2018, one of the state-owned newspapers, Người Lao Động (NLD), published a story about Bình’s case on the same day, explaining the government’s reasons behind his harsh sentence.

In one paragraph, NLD wrote:

“Taking advantage of the marine life environmental incident in the Central, and as the Vice-Chairman of Viet Labor Movement, Hoàng Đức Bình began to organize The Association of Fishermen in the Central with the intent to form an external organization, mobilizing forces, attracting Catholics, fishermen in the Central to join that organization; selecting ‘nucleus’ who could incite demonstration to disturb the peace and security.”

Not only international human rights laws protect the right of the people to form associations and organize protests, Vietnam repeatedly acknowledges and agrees to not infringe on these rights of its people in various international treaties and agreements. One of the more recent ones is the free trade agreement (FTA) with the European Union (EU).

About two and a half years before Bình’s trial, in October 2015, Vietnam and the EU have agreed on the text concerning the terms of the FTA between them.

At the same time, EU and its member countries have repeatedly maintained, that they are “fully committed to implementing the 2030 Agenda and its Sustainable Development Goals into EU policies.”

One of EU’s commitments to implementing the 2030 Agenda is to include in their free trade agreements, rules on trade and sustainable development as well as a human rights clause.

In the case of the Vietnam-EU FTA, that language is under Chapter 15 of the agreement, entitles Trade and Sustainable Development.

 

Article 3, Paragraph 2, Sub-paragraph (a) of Chapter 15 states:

“Each Party reaffirms its commitments, in accordance with its obligations deriving from the membership of the ILO and the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, adopted by the International Labour Conference at its 86th Session in 1998, to respect, promote and effectively implement the principles concerning the fundamental rights at work, namely:

a) the freedom of association and the effective recognition of the right to collective bargaining;”

 

The importance of this chapter and the human rights clause are also highlighted by the Chair of the European Parliament’s Committee for International Trade, Bernd Lange, during his visit to Hanoi in September 2017. That human rights and labor rights are at the center of the continued discussions about the FTA between Vietnam and EU.

Many could imply that the criminalization of Hoàng Đức Bình’s conduct for organizing people and forming an association of fishermen in the Central of Vietnam appears to be in direct violation of the Trade and Sustainable Development Chapter and the human rights clause of the Vietnam-EU FTA.

The European Parliament Think Tank assessed in February 2018, that the FTA with Vietnam “has been described as the most ambitious deal of its type ever concluded between the EU and a developing country. Not only will it eliminate over 99 % of customs duties on goods, but it will also open up Vietnamese services markets to EU companies and strengthen protection of EU investments in the country.”

They also opined that the Vietnam-EU FTA is estimated to boost Vietnam’s economy as much as 15 % of GDP, with Vietnamese exports to Europe growing by over one third.

The parties are hopeful that the FTA will be ratified by EU Parliament (and also by its member-states on issues involving investment) by the end of this year, or by 2019 at the latest.

However, the recent affirmation of Vietnam’s court regarding Hoàng Đức Bình’s 14-year sentence for organizing and participating in protests against Taiwan’s Formosa Hà Tĩnh Steel Corporation raises questions over the good faith of Hanoi in keeping up their end of the bargain when it comes to human rights and labor rights.

If Vietnamese government is sending people to prison with a very harsh sentence for exercising their freedom of association before the FTA is ratified, then what and how does EU plan to keep them in check once the dust is all settled?

Perhaps, this is a legitimate question for the EU-Vietnam Human Rights Dialogue to provide the public with a more definitive answer later this year?

Opinion-Section

The Real Casualty of Loc Hung Garden Incident: The People’s Trust

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When the officials of Tan Binh District in Ho Chi Minh City gathered over one thousands police officers and other forces to bulldoze some 200 houses at Loc Hung garden, they destroyed not only the shelters of a few hundred people but something else much more important.

What also crumbled and got buried deep in the rubbles was the people’s trust, or whatever left of that trust, in the current regime.

“I have to tell you honestly, the trust between the people of this community and the government has totally broken down over the decades. We cannot trust them after so many broken promises. They have told us that they would meet with us and provided us with documents about the projects, the plans. We received nothing. There is no trust.”

Cao Ha Truc, one of the persons representing the 124 households living in Loc Hung garden, spoke to me over the telephone on January 9, 2019, about 12 hours after he was released from the police station and came back to a home that was no longer there.

Truc told me that he was a vegetable farmer until the local authorities engaged in what he called “shady tactics” to stop him and others from continuing farming a few years ago.

In a video clip recorded earlier in the day, he said:

“They oppressed us by cutting off our means of survival, by letting water to flood our vegetable fields, and we could not live (rightly) for eight years.

We could not raise cats and dogs because they would die when the land was submerged in one meter of water. It took one month for the water to drain, but then the environment became polluted. We had to find other means of living.

We have lived here through three generations by farming vegetables, but now we had to flat out the land and built the Level 4 houses to keep on living.”

Truc was refuting the government’s claim that the residents living in Loc Hung were constructing houses illegally when it confirmed that some 112 homes were demolished on January 8, 2019.

Loc Hung garden is a complicated legal issue involving land rights and land possession which began to challenge the Ho Chi Minh City’s government starting in the late 1990s.

The Vietnamese government, in general, had faced more and more legal headaches concerning land disputes over the years, due to the rapid development happening across the country.

Land Disputes Developed with and within Land Development 

Vietnam’s economy grew exponentially in the past three decades after the communist regime decided to “open up” and explored a “free market with socialist characteristics.” In big cities like Hanoi and Saigon, some investment and development projects crashed head-on with the former way of life: farming.

Being an agriculture society for thousands of years, the fact that there were farmers even in the big cities probably should not surprise anyone. However, the clash between the old and new ways of life – coupled with the lack of a clear legal framework – had created long-lasting social, economic, and political problems to date.

Loc Hung garden incident was not the first and definitely, would not be the last of its kind.

In Vietnam right now, there could be hundreds of thousands of land-lost victims who are known as “dân oan” in Vietnamese, often translated into “victims of injustice” in English.

As of January 8, 2018, some may want to add another 124 households from Loc Hung area to this population.

At the same time, the local government has not exactly been transparent about the legal basis to support their claim to the land.

What the public knows thus far includes a still pending, development project for a public school system from K-12 on the land where Loc Hung garden is located, and that this project was postponed numerous times during the last five years.

Before that, both the City and District’s authorities had failed to carry out the other public construction projects they previously proposed for the area.

In report No. 6035/UBND-NCPC sent to the Government Inspectorate dated October 20, 2016, the People’s Committee of Ho Chi Minh City admitted two critical matters:

1) The public school development project has yet to be executed and was still only a prospect, and

2) The land dispute with the residents at Loc Hung garden would have continued to be classified as “complicated and long-term petition” has the project already started.

This report and its conclusion showed that the government has always recognized the land dispute at Loc Hung garden is not a matter of black and white, and that it anticipated a lengthy legal battle with the residents once the project begins.

Information on the pending development project, as well as the proposal on compensation and relocation of the residents, is not made readily available to either the residents of Loc Hung or the public as prescribed by laws.

Was There Due Process?

The official reason for tearing down the hundreds of homes given by the enforcing authorities, the People’s Committees of both the Tan Binh District and the Ward 6, was to enforce the order to remove illegal constructions at Loc Hung garden.

For the enforcement and removal to take place, the law in Vietnam required the authorities to provide three critical documents with sufficient public notice to the violating individuals or entities:

  1. The report conducted by the appropriate authorities on the violation
  2. The decision to penalize the violation, and
  3. The decision to enforce

(Law on Land 2013, Law on Administrative Penalization 2012, Decision 166/2013/NĐ-CP on Enforcement of Judgment, and Decision 102/2014/NĐ-CP on Administrative Penalization Relating to Land – all links in Vietnamese).

These documents also shall be served upon the violating individuals and entities, giving them an opportunity to remove voluntarily.

Cao Ha Truc told me he did not receive any of the three required documents but cautioned me that he could not speak for all others in the area.

The state-owned newspaper that published the story about Loc Hung also did not enclose copies of these essential documents.

When I called the office of the People’s Committee of Tan Binh District and asked for copies of the documents to be provided electronically according to laws, they turned me down. The desk person stated that I would need to show up in person to make my request.

The law prescribes a specific duty to the enforcing authorities, which is to establish that the required documentation exists and that the affected people are duly noticed. When the government has yet to provide them, we cannot conclude that there was due process.

Who Owns the Land in Vietnam?

Land ownership in Vietnam “belongs to the entire people with the State acting as the owner’s representative and uniformly managing land. The State shall hand over land use rights to land users in accordance with this Law.” (Article 4, Law on Land 2013).

I noticed the word “shall” was added in the English translation that I have found online. Its addition would make a significant difference, legally.

The Law on Land 2013, however, provides in details a long list of specific scenarios where the Vietnamese government would hand over the right to use the land to the people. At the same time, it also prescribes another list of situation where the government may perform land recovery and land requisition.

The main legal issue in Loc Hung garden case has always centered on the farmers’ right to possess the land and land use right from 1975 to date.

The government claimed they acquired the land and the other 1.2 hectares nearby from the old regime’s Postal Services under Government Council’s Decision No. 111/CP dated April 14, 1977.

The residents claimed that Decision No. 111/CP only covered the 1.2 hectares because the 4.8 hectares in question have been used for farming during the last 60 years in an undisrupted manner and without any disputes. They also claimed that the 4.8 hectares belong to the Catholics Church and the church gifted it to the farmers in 1954.

The facts that all parties could agree with would probably be the size of the disputed land and that the current government did allow the residents to continue living and farming undisrupted on such real property since 1975 to date.

On January 8, 2019, the Tan Binh District’s division of the Central Propaganda Committee issued a publication, stating that the residents who have been living and farming at Loc Hung garden would be entitled to compensation according to the policy for agriculture lands.

What would be the justification to compensate the residents if there wasn’t any legal basis for them to live there in the first place?

And could there ever be a monetary compensation that is enough to gain back the people’s trust in their government?

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Opinion-Section

Farmer’s Death Sentence Upheld On Appeal: New Climax For Land Dispute In Vietnam?

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Farmer Dang Van Hien. Photo courtesy: Luatkhoa.org

The Social Republic of Vietnam is known to be notorious for its land management system since the day of its inception.

‘People’s ownership of land,’ whilst sounds misleadingly progressive, has never meant spatial justice for Vietnamese citizens nor intended to guarantee national housing security. Government leaders, alongside with pro-government scholars, often and explicitly, assert that the so-called ‘People’s ownership of land’ is a necessary evil to preserve economic growth.

Under this system, the local government can act as a proxy (or to lend support) to investors, corporations and impose price controls with regards to buying land and property from ordinary citizens for commercial and/or industrial purposes, without the application of any market mechanism. Indeed, the system does accelerate the land-acquisition process, but it also entails corruption, nepotism, and large-scale internal displacement. Unsurprisingly, in 2017, after decades of reforms, 70% of all national administrative complaints and accusations are still land-related.

And again, the story of unresolved land dispute conflicts repeated in Dang Van Hien case.

Long Son Commercial and Investment Company (Long Son), an investor granted the right of using land by the provincial authorities of Dak Nong, decided that it was time to carry out an all-in attack on any farmer who involved in land disputes with Long Son and was not willing to comply with its eviction demands.

It is also noteworthy that these long-lived conflicts between the company and the involved farmers, including defendants Dang Van Hien, Ninh Viet Binh, Ha Van Truong, have all been reported to the competent officialdom, but the farmers only received silence back.

The position of the local government, until now, is still unknown. However, it was these eight years of constant terror tactics and threats made by Long Son toward the farmers, reportedly, that had led to the tragic ending of three deaths and several other injuries in October 2016.

On October 23, 2016, armed with ‘primitive weapons’ and several bulldozers, over thirty workers of Long Son Company advanced into the farms on the disputed lands, leveled half thousands of cash crops and surrounded the farmer’ houses in groups.

The farmers then responded with their improvised firearms. Dang Van Hien fired his gun in the air with the hope of dismissing the crowd. The attempt was unsuccessful and triggered further escalation from Long Son’s employees with rocks and bulldozers approaching. Desperate and probably was also in fear, in the end, Hien and Binh shot aimlessly into the group of workers even after they turned around and ran away. Three persons were killed and 13 others injured.

In the first trial by the lower court earlier this January, when the court announced the verdict that Hien received the death sentence for the murders, the attendees turned the courthouse into chaos. Unfortunately, the court of appeal has recently agreed with the first-instance court and upheld the judgment. And again, the villagers from Hien’s neighborhood reacted with outpouring outrage, and in a sense, out of despair right at the court’s doorsteps.

Legalwise, the court’s decision now faces widespread criticism from lawyers and independent scholars where most of them concur that the punishment for Hien is too harsh and unnecessary. It was the responsibility of Long Son, whose actions in the past eight years were both unlawful and provoking, which have caused the farmer’s retaliatory measures. Some are also pressing on the fact that both the trial and appellate courts have failed to consider the numerous mitigating factors in favour of Hien under Vietnam’s Penal Code. These include the fact that Hien voluntarily turned himself in and he and his family have made financial reparation to the victim’s families.

Politically speaking, the court seems to be, arguably, insensitive about the nature of the case. Land disputes have been and will continue to be the most problematic social conflict in Vietnam, and an unconvinced judgment like this will only consolidate public notion on the relationship between interest groups, crony capitalists, and the government.

On the other hand, some believe the judgment is deliberative. Activists contend that the judgment is a signal to landowners and dissidents alike, warning them that any conduct deemed to be challenging to the ultimate authority of the government in distributing land and assigning land purposes will never be tolerated in Vietnam.

Nevertheless, if the President of the Socialist Republic of Vietnam, Tran Dai Quang, refuses to grant Dang Van Hien a reprieve this week and the competent judicial branches also fail to request a reconsideration of the case by compelling a trial by cassation, Hien could very soon be the first farmer getting executed due to a land dispute in the history of the Communist Party’s ruling in the country. And that would be a very worrying sign for the deterioration of land administration under the current regime.

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Opinion-Section

From #MeToo to ‘Creating Our Own Tables’: How High Is The Glass Ceiling in Vietnam?

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Photo courtesy: kathmandupost.ekantipur.com.

The glass ceiling for women in Vietnam, to me, is as high as the sky for most.

Recent stories about sexual assault and other violent crimes against young girls and women not only caught the public attention but also gave observers glimpses of a patriarchal society which has remained – for centuries – the same in term of gender equality.

On May 28, 2018, Phụ Nữ (Women) newspaper published an online story, detailing a groping incident three days before, where the victim was one of the biggest music stars in Vietnam, Mỹ Tâm. As one of the most beloved pop singers in the country, known to many of her fans as the Queen of Ballads, Mỹ Tâm probably has one of the largest fan bases, if not the largest.

But none of that great fame was able to protect her from being a victim of sexual assault.

To add insult to injuries, Mỹ Tâm was assaulted while performing on stage at a private event in front of the whole audience, yet all she could do was to retreat to the backstage.

No one came to assist her; no one confronted the perpetrator who was mentioned in the article as an “important official.” The only kind gesture to show some sympathy for Mỹ Tâm was the fact that someone dared to make a report to the press.

It is still a big taboo for women who accuse men of sexual harassment and assault in a country like Vietnam because there would always be the fear that the public may not be sympathetic toward the victims.

It is true that when compares to other East Asian countries like its neighboring Japan, Vietnamese society shows signs that it is catching on to the #MeToo movement where people publicly support the victims.

The recent alleged rape allegations made by an intern at Tuổi Trẻ newspaper helped demonstrated this point.

But in a culture where, for thousands of years, women have been taught and praised for being able to keep quiet of their sufferings while making sacrifices for the sake of others, victim-blaming in most cases should come as no surprise.

People may not defend the perpetrators, but they will judge the women if they don’t fit the “proper” Vietnamese woman standard.

On April 27, 2018, dancer Phạm Lịch publicly alleged rocker Phạm Anh Khoa had made improper sexual advances at her. About a week later, another female dancer Nga My and an unnamed stylist also made public allegations against Pham Anh Khoa for sexual misconducts. And while Khoa eventually apologized for his behaviors on May 15, 2018, he only did so after UNFPA dropped him as one of its goodwill ambassadors, his appearances on TV were canceled, and a rock concert in Hochiminh City pulled the plug on him.

The public backlash against Khoa began after an NGO that works to promote gender equality in Vietnam, CSAGA, organized an event for him to explain his side of the story.

People quickly pointed out that CSAGA was given Khoa a platform to normalize improper and illegal behaviors against women because he was not acknowledging any faults, he was explaining that his conducts were “industry standards.” Phạm Lịch recently told reporters that she could not find any work for the past month after making her allegations against Khoa public. It is not too far-fetched to infer that she is likely being punished by the industry for breaking the silence on sexual abuse.

Both Khoa and CSAGA apologized immediately after the backlash, but with his half-hearted attempt to explain himself, Khoa inadvertently opened the pandora box and revealed a culture of subtle victim-blaming in Vietnam.

Such a culture became even more vividly portrayed just last week when a nude model alleged that a famous artist had raped her at work. Many commentators online, including democracy activists and lawyers, shifted the burden of proof to the alleged victim and insisted that she must prove she had forcibly fought back during her ordeal or it would not be rape.

No means no simply was not enough.

The victim’s credibility was questioned, and her job as a nude model took away a significant portion of public sympathy. People, women included, scoffed at her story when information surfaced that the perpetrator allegedly had used a condom.

Just this week, the case of alleged child abuse against Minh Tiệp, a sports newscaster at the national television broadcasting company VTV shows how victim-blaming extends to cases involving teenage girls as well.

When first asked about the alleged abuse, Minh Tiệp used the media to paint the victim, his 15-year-old sister-in-law, as a “bad girl.” She was, according to him, someone who has been dating as early as in 6th grade and always talked back at him and his wife, her older sister, while they were trying to teach her right from wrong.

A member of Vietnam’s National Assembly – Phạm Tất Thắng – played down the case as “one of those that should be dealt with by the family,” even after the father of the teenager told newspapers that Minh Tiệp slapped his daughter. Mr. Pham is a Vietnamese congressperson who belongs to a committee which deals with culture, education, women, children, and teenagers matters.

These stories should not come as surprises once you realized that they all attempted to portray the victims as being “improper.”

Because the “proper” Vietnamese woman only dresses and speaks in an approved manner, she will not work certain jobs, and above all, she endures her sufferings for the sake of others. She will not bring attention to herself and definitely keeps quiet about her injuries and her pains if they would bring shame to her family.

This proper woman thus is a virtuous one who would sacrifice all that she is for the well-being of her loved ones, and for that, she has been idealized, worshipped and expected to be placed on a pedestal throughout Vietnamese history for future generations of girls and young women to follow.

We were taught folklores like Quan Âm Thị Kính, a woman who was being misunderstood all her life, wrongfully accused of crimes she never committed and yet she never tried to explain herself. She would keep her mouth shut and endured the injustice until the day she died, and only after death that her name was cleared.

Then there was the story of Thiếu phụ Nam Xương, a lady wrongfully accused of infidelity by her husband who left for military service and returned home years later. Again, just like Thị Kính, talking back and explaining herself were not the options. And like the other story, our heroine could only use death to prove her innocence, so she killed herself.

Being demurred, forcing oneself to bite her tongue instead of speaking up, and learning the ability to suffer in silence and not complaining are virtues that aspiring young girl was told to keep.

I grew up in such a society for the first 12 years of my life, and despite being raised by parents who would raise other people’s eyebrows for the way they let me speak my mind and shout back at them when I think they were wrong, I had mastered those virtues by the age of 5. I was often seen as a quiet girl, sitting properly and politely with a half smile on her face, whose voice was rarely heard when visiting homes of my parents’ friends. I had convinced myself then, that conforming to societal norms would be the best and easiest way to save myself and my parents from unnecessary headaches.

For the next twenty years though, my life drastically changed as my family immigrated and I was growing up in the West, adapting to a new set of values. I have grown up to become a Westernized woman, one that my parents’ old friends from Vietnam could no longer recognize as the same quiet and demurred child they have met back in the home country.

But who could believe that it only took less than 15 months of living in the old settings among Vietnamese people to morph my 30’s something-year-old self back to my pre-teen’s personality?

I work in the NGO sector, and one would have thought that I must be among comrades who promote the same values as mine – gender equality included – but I have found that I needed to put in twice the efforts compared to my male counterparts in most things that I do. I always felt the need to prove my self-worth to others, and I was constantly looking for approval. Even in my field of work – where people often believe they are somewhat more progressive than the rest of society – it still seems as if the “seats reserved at the table” are only offered to women who fit the “proper” descriptions.

So I bit my tongue instead of speaking back and letting others know how I felt, how I did not agree with them, and how I thought that they were wrong. I sacrificed my happiness to keep others happy. I had changed so much that I could not recognize myself when I stared at the woman in the mirror on the wall one day in the middle of Southeast Asia, and I broke down, completely.

If life was this difficult for me – a woman with an advanced degree from the West – imagine how it would be for those who have fewer opportunities and those who never had the chance to live outside of Vietnam.

While I was lucky to get out of that environment to save myself a trip to the emergency room for depression treatment, it dawned on me how high the glass ceiling is for most Vietnamese women. The #MeToo movement has brought many important issues about women’s rights to the discussion table in Vietnam, and I hope gender equality will now receive the attention it deserves.

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