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The Right to Protest In Vietnam Is Not Only Legal, It’s Constitutional

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Kao Nguyen—AFP/Getty Images

On June 14, 2018, AFP reported, the spokesperson of Vietnam’s Ministry of Foreign Affairs, Le Thi Thu Hang, told reporters that Vietnam was holding an American citizen of Vietnamese descent, Will Anh Nguyen, under the suspicion of “disrupting public order.”

Online video clips showed Nguyen being dragged away by several men with his head covered in blood, and that he was thrown into the back of a police car. Later that day, news surfaced on Vietnam’s social media that he was arrested for being part of the demonstration.

One probably would stop and wonder: Is protesting illegal in this country?

Simply put, the right to protest is not only legal in Vietnam, but it is also the people’s constitutional right.

Article 25 of Vietnam’s 2013 Constitution prescribes:

The citizen shall enjoy the right to freedom of opinion and speech, freedom of the
press, of access to information, to assemble, form associations and hold
demonstrations. The practice of these rights shall be provided by the law.

Not only that, Article 166 of the 2015 Penal Code makes it a crime to infringe upon the human rights of others with the maximum sentence of up to five years in prison.

Nguyen very likely did not violate any law when participating in a march in Ho Chi Minh City while on vacation; the problem was: he had exercised his universal human rights in the wrong country.

His arrest is now making international headlines where most of the major media outlets have covered the story, and it also brings many people’s attention to the right to protest in Vietnam.

As in all of the protests that happened before, this time, again there were allegations that the police used excessive force to suppress the peaceful demonstrators.

Yes, in one province – Binh Thuan – riots broke out between the protestors and the police, but everywhere else, they were mostly peaceful, including the one that Will participated.

The UN Human Rights Office for South-East Asia stated on June 14, 2018: “We are particularly concerned about allegations that some protesters were beaten by law enforcement authorities.”

Any seasoned pro-democracy activists and human rights defenders will tell you what has happened to Will Anh Nguyen this past weekend is the same routine violation of human rights in Vietnam when people dare to exercise the right to demonstrate.

First, Vietnam still has no law providing for the practice of any of the rights stated in Article 25 of the Constitution.

While the legislative body of the nation kept delaying passing such a law, the government in March 2005 issued Decree 38/2005/NĐ-CP to regulate “public gatherings”.

Accordingly, a public gathering of more than five people must be approved by the Provincial People’s Committee, unless it was organized by the government or social and/or political organizations belong to the government.

This Decree has been quite effectively used by the government to wrongfully break up protests and to arrest people in the past. Nevertheless, its language has been denounced by both legal experts in Vietnam and the international community because of human rights violations.

It is worth noting that the Decree does not mention the word “demonstration” anywhere, so it can be argued that legally, it cannot be used to regulate protests.

Thus, in 2011, during the height of another wave of protests across the country, a group of activists and lawyers petitioned the National Assembly’s Standing Committee for a review of Decree 38.

Vietnam does not have a constitutional court. Instead, the National Assembly has the power to interpret the Constitution, but to date, they have not responded to the petition filed back in 2011.

In fact, the National Assembly of Vietnam has never exercised this power to interpret the law.

In a nutshell, the law on the practice of demonstration seems to have been strategically delayed while an allegedly unconstitutional government’s decree will act as the only official tool to round up peaceful protesters and arresting them.

The nation-wide protests broke out in Vietnam last Sunday, June 10, 2018, against the proposed Special Economic Zones (SEZ) and the cybersecurity draft laws, were estimated to have had thousands of people marching.

Some sources believed around 300 people were later arrested in Ho Chi Minh City alone, and one of them was Will Anh Nguyen.

Since his detention on Sunday afternoon, his family has been actively working with the U.S embassy to get him released.

Human Rights

Pham Doan Trang’s Indictment Is Public Today; What Do We Know About Her Case?

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Pham Doan Trang (Photo: Adam Bemma/Al Jazeera). Graphic: Luat Khoa Magazine.

The indictment against journalist and democracy activist Pham Doan Trang was made public on October 18, Vietnam time. We are summarizing the main issues from the 15-page indictment, which you can read here in Vietnamese.

The main points of the indictment are:

  • The indictment stated that the investigation was done between September 22, 2016 and October 7, 2020. October 7, 2020 was also the day that the authorities arrested Doan Trang.
  • The Department of Cyber Security and High Tech Crimes under the Ministry of Public Security (MPS), the national police in Vietnam, petitioned the investigation department to pursue legal proceedings against Doan Trang on May 4, 2020 and October 7, 2020 and included its documents and materials against her.
  • The Department of Information and Communications of Hanoi City also submitted two petitions with documents and materials to the MPS on December 26, 2017 and January 7, 2019, requesting legal proceedings against Doan Trang.
  • The Investigation Unit of Hanoi City’s Police formally opened the investigation on September 10, 2020.
  • The decision to initiate criminal proceedings against Doan Trang was issued on September 28, 2020.
  • Doan Trang was arrested under a warrant on October 7, 2020 in Ho Chi Minh City.
  • She refused to provide her laptop’s password to the police and accordingly, the police could not access its data.
  • She also refused to acknowledge the Facebook account of the name “Pham Doan Trang” belonged to her, and the investigative unit could not charge her for the information posted via that account on social media.
  • Doan Trang acknowledged that she was one of the authors of the “Report Assessment of the 2016 Law on Belief and Religion in relation to the exercise to Freedom of Religion and Belief in Vietnam” in both English and Vietnamese. This report was published on the website of Luat Khoa Magazine.
  • On February 19, 2021, the Authority of Information Security (under the Ministry of Information and Communications) submitted a document to the investigative unit which stated that it could not determine who owned and managed the domain name luatkhoa.org to pursue further legal proceedings against it.
  • The indictment stated that Doan Trang repeatedly committed unlawful conduct which can be used to increase her punishment.
  • The indictment also did not find any facts to reduce the punishment against her.
  • The investigation of her case was concluded on August 26, 2021.
  • The indictment stated that Doan Trang continued her unlawful conduct from 2017 to 2019 so both the 1999 Penal Code and the 2015 Penal Code (which took effect on January 1, 2018) could be used to prosecute her.
  • However, the indictment also stated that Doan Trang did not confess to any of these crimes and that the 1999 Penal Code would be more beneficial to the defendant since Article 88 of that penal code starts the sentence at 3 years imprisonment versus 5 years imprisonment under Article 117 of the 2015 Penal Code. Therefore, the government dropped charges under Article 117 and only prosecuted Doan Trang under Article 88.

The Evidence against Pham Doan Trang under the indictment:

  • English document named “Brief report on the marine life disaster in Vietnam”;
  • English document named “General Assessments of the human rights situation in Vietnam”;
  • English and Vietnamese versions of the “Report Assessment of the 2016 Law on Belief and Religion in relation to the exercise of the right to Freedom of Religion and Belief in Vietnam”;
  • Two interviews with Pham Doan Trang by BBC News  Vietnamese and Radio Free Asia – Vietnamese (RFA) in 2018.

Formal indictment:

The Hanoi People’s Procuracy Office prosecuted Doan Trang under Article 88, Section 1, subsections a, b, and c for “propagandizing against the Socialist Republic of Vietnam ” of the 1999 Penal Code. The sentencing for this crime will be 3 to 12 years imprisonment.

The indictment is dated August 30, 2021. However, it was only made public on October 18, 2021, in Vietnam, just more than two weeks before Pham Doan Trang’s trial. For almost two months, Doan Trang’s family and her attorneys, as well as the public, have been kept in the dark about the case Vietnam has against her. 

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Vietnam To Try Pham Doan Trang For Propagandizing Against The State On November 4, 2021

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Pham Doan Trang. Graphic: Luat Khoa Magazine.

On October 14, 2021, attorney Dang Dinh Manh, one of Pham Doan Trang’s lawyers, posted on his Facebook that the People’s Court of Hanoi will try the prominent journalist and writer on November 4, 2021. Manh further indicated that the same court will also try Trinh Ba Phuong and Nguyen Thi Tam – two of the Duong Noi farmers – on November 3, 2021.[1]

Furthermore, sources informed The Vietnamese Magazine that the authorities have yet to officially approve any of Doan Trang’s attorneys to be her legal representatives. Attorney Manh confirmed that the government informed him of the information about Doan Trang’s trial via telephone. 

On October 6, 2021, Pham Chinh Truc, Doan Trang’s brother, received a notice from the Hanoi People’s Procuracy Office regarding his sister’s case status. That day also marked one year since the Vietnamese authorities arrested Doan Trang in Ho Chi Minh City. During this entire time, she has been held incommunicado. Her lawyers also received minimal information from the authorities about her case. 

Hanoi People’s Procuracy notified Truc that they had decided to transfer the case to the People’s Court of Hanoi after recommending her indictment on August 30, 2021. 

The Procuracy, however, did not specify what its recommendations are and what have been her conducts that fall under its possible charges against Pham Doan Trang. It is charging her with “conducting propaganda against the Socialist Republic of Vietnam,” which falls under either Article 88 of the 1999 Penal Code; she faces the possibility of a 20-year sentence. The Procuracy also failed to provide any evidence that it may have found during the year-long investigation leading up to the case being transferred to the Court. 

However, because none of her attorneys have yet to be officially recognized by the government, they did not receive the government indictment. In other words, both her family and her attorneys still do not know what evidence the government has against Doan Trang or the details of the charges against her. In the next few days, her attorneys will file a motion to delay her trial so that they can better prepare for her defense, The Vietnamese Magazine has learned.

Trinh Huu Long, the co-director of Legal Initiatives for Vietnam (LIV) and one of Doan Trang’s closest colleagues told The Vietnamese:

“It’s highly unusual that an activist is held completely incommunicado until just before the trial such as has happened with Doan Trang. This is nothing less than an extremely severe violation of both domestic and international laws. It is also ironic. The government wants to punish Doan Trang because she made it look bad, and Vietnam calls this is the rule of law, while the government itself has long gotten away with all sorts of inhuman treatment and violations of its own laws.”

Notes:

[1] Our previous version of this article has stated that Pham Doan Trang’s trial will be on November 3, 2021. However, Attorney Dang Dinh Manh since then has corrected his earlier statement and her trial will be on November 4, 2021.

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Tightening The Noose: The Latest Developments In Vietnam’s Assault On Internet Freedom

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Screenshot of Vietnam section on CIVICUS website. Photo source: CIVICUS.

On August 25, 2021, U.S. Vice President Kamala Harris met with several of Vietnam’s top leaders. According to a report by Reuters, while the focus of their dialogue centered on the South China Sea dispute and the strengthening of U.S presence in the region, she also brought up several human rights concerns with the Vietnamese government. Although Harris did not provide details about what they had discussed, the vice president assured the press that “[the United States] was “not going to shy away” from difficult conversations with countries the United States has partnerships with.

Prior to her arrival, Vietnam was already dealing with a surge in Covid-19 infections, which resulted in lockdowns and travel restrictions in several places in the country, including Ho Chi Minh and Hanoi. As of September 26, Vietnam has tallied over 476,000 confirmed cases with 18,000 deaths. The Vietnamese government’s approach to containing the spread of the virus has been questionable at best with its use of state media and propaganda to control the narrative and deployment of the military to enforce lockdown measures. 

Yet, despite the ongoing health crisis and the dialogue with the U.S. vice president, Vietnam continues its crackdown, detention, and imprisonment of several online critics, journalists, and activists. 

Freedom on the Net 2021

Freedom House, a US-based organization founded to support and defend democracy worldwide, released its annual Freedom on the Net report on September 21, 2021. This report analyzes the state of accessibility and censorship of a country’s cyber domain, alongside violations of internet users’ rights, and ranks each nation as being Free, Partly Free, or Not Free. It comes as no surprise that Vietnam continues to fare poorly in this regard; it has been classified as Not Free for three consecutive years and has been performing terribly under the standards set by Freedom House. 

This research highlights several aspects of the state of internet freedom in Vietnam. Regarding accessibility, Freedom House states that smartphone and internet penetration in the country has been good with internet prices becoming more affordable. However, connectivity continues to remain an issue for those living in extreme poverty and for ethnic minorities who live in the remote mountainous areas of Vietnam. Censorship also continues to be practiced by the Vietnamese government as it blocks or filters content coming from individuals and organizations that are critical of the regime. Predictably, Vietnam’s violation of internet-user rights is just as rampant compared to prior years with “police routinely [flouting] due process, arresting bloggers and online activists without a warrant or retaining them in custody beyond the maximum period allowed by law.”

CIVICUS: Latest Developments in Vietnam

On September 27, 2021, CIVICUS, an international alliance of various organizations that aim to strengthen citizen action and civil society worldwide, released its own report that details more recent events regarding the state of internet freedom in Vietnam. Similar to Freedom House, CIVICUS classifies Vietnam as Closed according to its own standards; a country with this rating exhibits “a complete closure of civic space” where “an atmosphere of fear and violence prevails, where state and powerful non-state actors are routinely allowed to imprison, seriously injure and kill people with impunity.” Criticism of those in power is also severely punished. Likewise, media freedom is virtually non-existent and the internet is heavily censored.

The CIVICUS report begins by highlighting the cases of several Facebook users who were arrested or imprisoned under Articles 117 and 331 of Vietnam’s Criminal Code. Nguyen Van Lam and Tran Hoang Minh were both found guilty by Vietnamese courts of violating these statutes on July 20, 2021. Lam was sentenced to nine years in prison for “posting anti-state writings and sharing videos and other content, including broadcasts considered politically subversive,” and for “creating, storing, disseminating information and materials against the Socialist Republic of Vietnam.” Minh was given five years of jail time for “abusing democratic freedom” and for his objections to the Dong Tam land dispute incident

The report continues with the arrests of Facebookers Tran Hoang Huan and Bui Van Thuan, on August 10, 2021, and August 30, 2021, respectively. Huan’s recent posts voiced his objections and concerns regarding Vietnam’s use of Chinese-made COVID-19 vaccines. He was charged by the Tien Giang People’s Procuracy for “making, storing and spreading or propagandizing information or documents against the state under Article 117 of the Penal Code.”  Bui Van Thuan was arrested in his home by policemen who pretended to be medical workers. Bui Van Thuan’s wife, Trinh Nhung, stated with The 88 Project that Thuan had previously posted “biting commentaries against the government’s handling of COVID-19 and other political issues.”

The more recent cases of Nguyen Thuy Duong and Nguyen Duy Linh are also mentioned in the report. CIVICUS states that Amnesty International had reported on September 2, 2021, that Duong had been fined 5 million dong (US$220) for sharing a Facebook post that accused Vietnamese authorities of neglect during the COVID-19 lockdown. This post blamed the government for the rampant spread of hunger among city residents during this time. Nguyen Duy Linh was arrested on September 14 and charged by state authorities with “conducting anti-state propaganda” under Article 117 of the country’s Criminal Code.

Updates regarding the case of detained human rights defender, journalist, and co-founder of The Vietnamese and the Luat Khoa online magazines, Pham Doan Trang, are also included in the CIVICUS report. On September 6, 2021, the government informed Doan Trang’s lawyer, Luan Le, that his client would be “formally indicted with ‘conducting propaganda against the Socialist Republic of Vietnam under Article 88 of the 1999 Penal Code.” Despite her case being brought to the attention of the United Nations Working Group on Arbitrary Detention (UNWGAD), she still faces the very real possibility of being sentenced to 20 years imprisonment. 

Radio Free Asia’s coverage regarding the arrest of five journalists from the Facebook-based news outlet, Bao Sach (Clean Newspaper) is also mentioned in the report. Truong Chau Huu Danh, Nguyen Thanh Nha, Doan Kien Giang, Nguyen Phuong Trung Bao, and Le The Thang were charged with violating Article 331 of Vietnam’s Criminal Code for posting “anti-state and reactionary information” which delved into information that was “inappropriate, distorting, against the country’s interests, and slanderous of the people’s administration.” Thang is currently released on bail while the other four journalists are still in detention. Truong Chau Huu Danh, the founder of Bao Sach, also faces the additional charge of posting stories that “generated bad interactions between internet users in the cyber environment” which “propagandized, distorted, defamed and seriously slandered Party organizations and local Party committees.”

Tran Huu Duc and Le Thi Kim Phi were accused by the authorities of using Facebook to connect with members of the U.S.-based Provisional Government of Vietnam, an organization founded in 1991 by former soldiers and refugees who remained loyal to the South Vietnamese government after the war. Than Huu Duc was arrested in January 2021 and charged under Article 109 of Vietnam’s Penal Code for “gathering information on Nghe An residents … for a referendum on naming [Provisional Government of Vietnam] member, Dao Minh Quan, as president of Vietnam.” Duc was also accused of “posting political content online” that opposed government policies and “slandering leaders of Vietnam’s ruling Communist Party.” In September 2021, Le Thi Kim Phi was arrested and charged under the vague clause of “carrying out activities to overthrow the government.” 

In January 2018, the Provisional Government of Vietnam was labeled a “terrorist organization” by the Vietnamese authorities. 

Additional Restrictions on Internet Freedom 

Following the passage of the controversial Cybersecurity Law in 2018, the CIVICUS report further mentions a draft of a government decree which further restricts internet freedom by limiting live-streaming on popular social media sites. CIVICUS states that, “under the terms of the decree, any account that operates on a social media platform in Vietnam and has more than 10,000 followers must provide contact information to authorities” and that “only registered accounts will be allowed to live-stream.” The draft also imposes additional responsibilities on social media providers, requiring them to block or remove content within 24 hours if they receive a “justified complaint” from an individual or organization. 

When passed this decree, coupled with the already draconian Cybersecurity Law, will serve to further cement the Vietnamese Communist Party’s (VCP) rule over the country’s already restrictive cyberspace, putting social media users more at risk of the government’s retribution and reducing social media platforms to tools of government surveillance. 

Freedom on the Net 2021 provides an overall look at the state of internet freedom in Vietnam while the CIVICUS report presents recent, documented, and specific events that support Freedom House’s outlook on the country. Both illustrate a very grim and depressing reality about Vietnam: that despite international pressure, in the form of U.S Vice-President Harris’ visit, and the ongoing COVID-19 pandemic, the VCP is more concerned about maintaining power and control over its people than prioritizing their welfare and safety during these difficult times; the Party would rather control the narrative than work to give actual aid to much of its struggling populace. 

In the end, the actions of the Vietnamese government serve only as a reminder of its ineptitude during times of crisis and its callousness to the plight of everyday Vietnamese; in its relentless attack against internet freedom and freedom of speech, the more pressing and immediate threats to the welfare of the Vietnamese people remain half-heartedly addressed. 

Citations:

  1. Bose, N. (2021, August 25). U.S. VP Harris offers Vietnam support to counter Beijing in the South China Sea. Reuters. Retrieved September 28, 2021, from https://www.reuters.com/world/asia-pacific/us-vp-harris-offers-vietnam-support-counter-beijing-south-china-sea-2021-08-25/
  2. Jaffe, A. (2021, August 26). Harris says she urged Vietnam to free political dissidents. – The Diplomat. Retrieved September 29, 2021, from https://thediplomat.com/2021/08/harris-says-she-urged-vietnam-to-free-political-dissidents/
  3. Nguyen, J. (2021, August 19). State media and social media during the COVID-19 pandemic: A tale of two cities in Vietnam. The Vietnamese. Retrieved September 29, 2021, from https://www.thevietnamese.org/2021/08/state-media-and-social-media-during-the-covid-19-pandemic-a-tale-of-two-cities-in-vietnam/
  4. Nguyen, J. (2021, September 12). Why did the Vietnamese Communist Party militarize its fight against COVID-19? The Vietnamese. Retrieved September 29, 2021, from https://www.thevietnamese.org/2021/09/why-did-the-vietnamese-communist-party-militarize-its-fight-against-covid-19/
  5. Shahbaz, A., & Funk, A. (n.d.). Freedom on the net 2021: The global drive to control Big Tech. Freedom House. Retrieved September 30, 2021, from https://freedomhouse.org/report/freedom-net/2021/global-drive-control-big-tech
  6. Reed, A. (2021, September 21). New research: Vietnam remains “not free” on internet freedom, Freedom House says. The Vietnamese. Retrieved Sept 30, 2021, from https://www.thevietnamese.org/2021/09/new-research-vietnam-remains-not-free-on-internet-freedom-freedom-house-says/
  7. Huu Long, T. (2021, September 21). Vietnam: Freedom on the net 2021 country report. Freedom House. Retrieved October 1, 2021, from https://freedomhouse.org/country/vietnam/freedom-net/2021
  8. C. I. V. I. C. U. S. (2021, September 27). CRACKDOWN ON ONLINE CRITICS PERSISTS IN VIETNAM AS NEW DECREE CONTROLLING LIVESTREAMING PROPOSED. Civicus. Retrieved September 29, 2021, from https://monitor.civicus.org/updates/2021/09/27/crackdown-online-critics-persists-vietnam-new-decree-controlling-livestreaming-proposed/
  9. Civicus. (2020, April 7). ONLINE DEBATE ON DONG TAM INCIDENT FOLLOWED BY PANDEMIC SILENCED BY VIETNAM AUTHORITIES. Civicus. Retrieved October 1, 2021, from https://monitor.civicus.org/updates/2020/04/07/online-debate-dong-tam-incident-followed-pandemic-silenced-vietnam-authorities/
  10. The 88 Project (2021, September 6). Vietnam free expression newsletter no. 34/2021 – week of August 30-September 5. The 88 Project. Retrieved September 29, 2021, from https://the88project.org/newsletter-no-34-2021/
  11. Finney, R. (2021, September 3). Vietnamese facebook user fined for ‘fake news’ as criticism grows of government’s handling of pandemic. Radio Free Asia. Retrieved September 30, 2021, from https://www.rfa.org/english/news/vietnam/fine-09032021182640.html
  12. Whong, E. (2021, September 10). Vietnam indicts five journalists from Facebook-based outlet. Radio Free Asia. Retrieved September 30, 2021, from https://www.rfa.org/english/news/vietnam/baosach-09092021174755.html
  13. Finney, R. (2021, September 14). Vietnam court sentences member of ‘Provisional Government’ to three-year prison term. Radio Free Asia. Retrieved October 29, 2021, from https://www.rfa.org/english/news/vietnam/court-08182021185109.html
  14. Gerin, R. (2021, September 14). Third Vietnamese charged for Facebook connections with US-based Exile Group. Radio Free Asia. Retrieved September 30, 2021, from https://www.rfa.org/english/news/vietnam/le-thi-kim-phi-09102021183034.html

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