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How Closed Is Civic Space in Vietnam?

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Photo courtesy: FIDH

UPDATE ON DECEMBER 20, 2018: The correct decree number has been included after more information was released by the organizers of the conference mentioned in this article.

Today, December 19, 2018, the police in Hanoi disrupted an event and forced the organizers to discontinue the Third Annual Conference on the Roles of Government, Civil Society, and other Related Stakeholders in Providing and Monitoring Public Services (Third Annual Conference) which was supposed to last until tomorrow. The conference was organized by several NGOs and CSO working groups in the country, and its disruption again shows alarming signs that civic space in Vietnam is not only closed but getting more restrictive.

As a sunny state in Southeast Asia that often gets praised on many travel and food networks channels, the scores which different international indexes give Vietnam on individual freedoms, such as the classification as a “closed” society by CIVICUS, don’t seem to match up.

However, Vietnam is a country with many paradoxes and the political atmosphere more often than not has proven to be extremely repressive for civil society.

From a few sources on social media, the Hanoi authorities cited an archaic decree as their reasons to stop the above conference. It was not the often used Decree 38/2005/NĐ-CP (Decree 38) (link in Vietnamese), which requires public gatherings of more than five people to seek approval from the Provincial People’s Committee.

This time, the local authorities used a decree that was originated to regulate people’s gatherings during wartime dated back in 1957: Decree 257-TTg (link in Vietnamese). Decree 257 sought to provide the implementation guidelines for Presidential Order 101-SL/L.003 (link in Vietnamese) executed by Ho Chi Minh on May 20, 1957, on the right to freedom of association.

Ironically, while the language of both Decree 257 and Presidential Order 101-SL/L.003 stated the requirement to give 24 hours notice (including verbal notice) of gatherings which would be similar to the Third Annual Conference; neither one mandated such gatherings must be discontinued if notice was not given. More than six decades later, the authorities in Hanoi insist that the Third Annual Conference had to end.

In recent years, despite what the Constitution of 2013 says about the right to peaceful assembly, the Vietnamese authorities, however, often applied Decree 38 to regulate “public gatherings. This decree would allow law enforcement to disperse crowds and mandates the police and army to cooperate with local authorities “to ensure the public order in case of need.”

Here is the first paradox, which is about the nature of Decree 38 and Decree 257, as these are laws that were not passed by the country’s legislative body – the National Assembly. They were orders issued by the administrative branch of the government. One would think that they should be deemed unconstitutional when contradicted directly with what the current Constitution said about the right to peaceful assembly in Vietnam when it was last amended in 2013. But that is not the case.

In reality, the Constitution is often ignored completely, and Decree 38 has been the sword that the police force frequently used to cut right through people’s civil rights again and again. And now, even a decree dated back to June 14, 1957, like No. 257, could trump the current Constitution.

The second paradox is that only one week ago, on December 12, 2018, Ambassador Duong Chi Dung, the Head of Vietnam’s Permanent Mission in Geneva, cited in his speech at the UPR pre-session (an event organized by UPR-Info), that Vietnam, since the last Universal Periodic Review (UPR) cycle in 2014 had implemented 96% of all recommendations it had accepted from the member states to improve human rights conditions in the country.

13 out of the 182 recommendations Vietnam supported back in June 2014 requested the government to guarantee the people’s freedom of peaceful assembly and association. In practice, from 2014 to date, not only that Decree 38 is still being widely and arbitrarily applied in the country, but the authorities now started to enforce another decree which should have been considered obsolete under the country’s current legal framework, seeking to curtail the freedom of association further.

Back to the conference that got stopped mid-way in Hanoi today, even disregarding the constitutionality of Decree 38 and 257, another paradox was the fact that it was not taken place in “public.” The location of the event was at The Hanoi Club, a private hotel.

The definition of “public places,” like the constitutionality of Decree 38 or Decree 257 itself, was never explained or defined in a court of law. While it could arguably be correct to say that the Standing Committee of the National Assembly is entrusted with the power to “interpret the Constitution,” they have never attempted to exercise such power. The judiciary in Vietnam has not been showing interest in taking up the task either.

In the meanwhile, the Ministry of Public Security – the national police force – has taken full advantage of maneuvering Decree 38 – and now, Decree 257 – at their will, without any judicial oversight. What happened today at the Third Annual Conference in Hanoi raised more doubts about the space reserved for civil society organizations to operate freely and independently in Vietnam.

Human Rights

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Human Rights

EU Officials Raised Concern Over Worrying Human Rights Situation In Vietnam

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

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

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

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

Instead, it became more concerning.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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