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Human Rights Peer Review of Vietnam Spotlights Persistent Rights Violations

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From left to right, Pham Doan Trang, Nguyen Tin, Nguyen Dai, three activists beaten by police in August 2018. Photo courtesy: HRW.

On 22 January 2019, Vietnam underwent for the third time a comprehensive peer review of its human rights record at the Human Rights Council (a process known as Universal Periodic Review or UPR), amidst what many rights groups and observers have called the worst wave of crackdown on dissent, activism and civil society in years.

121 governments took to the floor and made close to 300 recommendations on a wide range of human rights issues. Under the rules of the UPR, Vietnam can choose to “accept” or merely “note” the recommendations it receives and must do so in writing by the time the 41st session of the Human Rights Council begins in late June 2019.

Governments have the primary responsibility to implement those recommendations that they have accepted and report progress therein in the next cycle of review.

Many of the issues raised during the third review are the subject of recommendations that Vietnam had accepted to implement or noted in the two previous UPR cycles. Critics say that Vietnam not only failed to implement them but have taken actions to the contrary.

Prior to the latest review, numerous independent civil society organizations, both inside Vietnam and internationally, submitted parallel reports to the United Nations on the non-implementation of previously accepted recommendations and the overall deteriorating human rights situation in Vietnam.

Below are some highlights of recommendations clustered by several major recurring thematic issues (the number preceding each recommendation refers to the paragraph number in the draft outcome report of Vietnam’s third UPR, followed by the name of the recommending country in parentheses):

  1. Civil Society and Human Rights Defenders
  2. Restrictive Laws and Regulations
  3. Death Penalty
  4. Discrimination, Inequalities and Vulnerable Groups
  5. Fundamental Freedoms
  6. Judicial System, Fair Trials and Due Process

Phan Kim Khanh, one of the youngest political dissidents in Vietnam. Khanh is currently serving a 6-year-prison term.

Civil Society and Human Rights Defenders

6.55 Take steps to protect human rights defenders, particularly by repealing or revising the provisions of the Penal Code that make reference to the concept of national security (France)

6.145 Immediately release prisoners who have been arbitrarily or unlawfully detained and allow them to exercise their human rights and fundamental freedoms in Vietnam, including Ho Duc Hoa, Tran Huynh Duy Thuc, Tran Thi Nga, Nguyen Bac Truyen, and the members of the Brotherhood for Democracy (United States of America)

6.175 Release human rights defenders sentenced to prison for exercising the right to freedom of expression (Iceland)

6.177 Take the necessary measures to ensure the freedom of expression of human rights defenders and journalists, in particular by investigating and punishing perpetrators of threats and reprisals against them (Argentina)

6.180 Protect human rights defenders and prosecute all persons guilty of violence or intimidation against them (Luxembourg)

6.186 Review regulations impeding the operation of Civil Society Organisations, to enable a more open space and ensure that national security provisions are not used to prevent peaceful debate and dissent (Ireland)

6.191 Release all human rights defenders as well as political and religious activists detained for the peaceful expression of their political opinions or religious belief (Poland)

6.198 Adopt measures in line with international standards to guarantee freedom of association, opinion and expression, including online, and to ensure that journalists, human rights defenders and NGOs can freely operate (Italy)

6.202 Guarantee Fully freedom of speech, the rights of peaceful assembly and association as well as the safety of journalists, and review cases of persons convicted for having freely expressed their opinion, including human rights defenders (Switzerland)

6.203 Improve protection of the rights to peaceful assembly and expression by reviewing existing legislation, and publishing and implementing clear, transparent guidelines on security personnel conduct in managing peaceful demonstrations (United Kingdom of Great Britain and Northern Ireland)

6.205 Ensure consistent implementation of the Law on Belief and Religion particularly at the local level, including with respect to registration of Protestant groups and other groups in Northwest Highlands provinces, and remove undue restrictions on access to religious materials and clergy for those imprisoned and cease any harassment of independent groups on account of their religion (United States of America)

6.211 Publicly recognize human rights defenders and provide an environment in which they can carry out their human rights work safely (Belgium)

6.214 Nurture a culture of free expression online and offline, release all imprisoned human rights defenders, including bloggers and political dissenters, and put an end to their harassment (Czechia)

6.215 Create an enabling environment for independent civil society and ensure that the prepared Law on Association facilitates the registration, work and funding of NGOs free from undue State interference and restrictions (Czechia)

6.216 Lay ground for political plurality and democracy and guarantee its citizens the full enjoyment of the rights to vote and to be elected and to take part in the conduct of public affairs (Czechia)

A policeman, flanked by local militia members, tries to stop a foreign journalist from taking pictures outside the Ho Chi Minh City people’s court, where a human rights case was taking place in August 2011. Photograph: Ian Timberlake/AFP/Getty Images

Restrictive Laws and Regulations

6.73 Adapt the Code of Penal Procedure to international standards and amend Articles 109 and 117 on “activities against the State” in the Penal Code, in line with human rights standards (Switzerland)

6.167 Repeal or amend provisions in the Penal Code and Cyber Security Law so that provisions relating to national security are clearly defined or removed, to ensure that they cannot be applied in an arbitrary manner to endanger any forms of freedom of expression, including internet freedom (Finland)

6.171 Review all convictions based on laws restricting freedom of expression and opinion, in particular articles 79 and 88 of the Penal Code, according to the revised penalty ranges (Germany)

6.174 Consider revising national legislation, including the Law on Belief and Religion and the media Laws, in order to harmonize it with international standards regarding the right of freedom of expression and of religion (Brazil)

6.183 Amend, within one year, the 2015 Penal Code, Decree 174/2013, Decree 72/2013, Decree 27/2018, the 2018 Law on cybersecurity and articles 4, 9, 14 and 15 of the 2016 Press Law, to guarantee offline and online freedom of press and expression, and the right to privacy, in line with articles 17 and 19 of the International Covenant on Civil and Political Rights (Netherlands)

6.185 Related Cybersecurity Decrees should include clear provisions for interpretation of the Law on Cybersecurity according to international standards on freedom of expression (Ireland)

6.187 Ensure that the legal framework protects freedom of expression both offline and online and accordingly amend the Penal Law and Law on Cybersecurity to ensure consistency with international human rights law, including the International Covenant on Civil and Political Rights (New Zealand); Ensure that freedom of expression is protected online and offline by amending national security provisions in the Penal Code, and the Cybersecurity law and its implementing decree, so as to comply with article 19 of International Covenant on Civil and Political Rights and other commitments (Sweden); Guarantee the rights to freedom of expression and freedom of assembly and amend the penal code and the Cyber Security Law to make sure that the limitations on the right of freedom of expression are in line with the International Covenant on Civil and Political Rights (Austria); Review the Criminal Code and the law on cybersecurity to harmonize it with international standards related to the freedom of expression, association and assembly (Canada)

6.188 Revise the provisions of Articles 117 and 331 of the 2015 Penal Code and other relevant laws that restrict the ability to exercise fundamental freedoms and allow free operation of national and international media (Norway)

6.193 Ensure full implementation of its international human rights obligations regarding freedom of religion and belief by reviewing the Law on Belief and Religion to bring it into line with article 18 of the International Covenant on Civil and Political Rights (Poland)

6.194 Abolish prior censorship in all fields of cultural creation and other forms of expression, both online and offline, including by bringing the restriction to freedom of expression under the 2016 Press Law in line with international standards and fostering a pluralistic and independent media environment (Portugal)

6.197 Review and amend national legislations in order to enable the effective exercise of the rights of freedom of expression and peaceful assembly in line with the standards enshrined in the International Covenant on Civil and Political Rights (Seychelles)

6.212 Review the law on religion and belief to enable religious groups to practice freely (Canada);Review the 2016 Law on Belief and Religion and bring it in conformity with international human rights standards and freedom of religion or belief standards (Croatia)

Nguyen Thi Loan, mother of Ho Duy Hai. Photo credit: Nguyen Lan Thang.

Death Penalty

6.5 Accede to the Second Optional Protocol to the International Covenant on Civil and Political Rights aimed at abolishing the death penalty (El Salvador); Ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the Abolition of the Death Penalty (Montenegro); Ratify, without reservations, the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty (Slovenia); Ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty (Croatia)

6.140 Initiate a moratorium on the imposing of capital punishment and especially for non-violent crimes (Finland); Consider implementing a full moratorium on the death penalty (Georgia); Impose a moratorium on executions and abolish the death penalty (Iceland); Establish a de facto moratorium on the death penalty with a view to its abolition (Portugal); Establish a moratorium on the application of the death penalty as a step towards its definitive abolition and modify the Penal Code to reduce the number of crimes for which the capital punishment can be imposed (Spain); Impose a moratorium on executions with the goal of abolishing the death penalty (Albania); Establish a moratorium on the death penalty as a step towards complete abolition of this practice (Australia); Immediately adopt a moratorium on the death penalty with a view to ultimately abolishing it (Austria); Take the necessary measures to establish a moratorium on executions of death row prisoners as well as to repeal the death penalty from their national legislation (Argentina)

6.141 Abolish the death penalty and, without delay, reduce the number of offences punishable by the death penalty (France); Abolish definitely the death penalty and ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the Abolition of the Death Penalty (Luxembourg); Continue reform towards abolition of the death penalty, including by continuing to reduce the list of crimes punishable by the death penalty under the Penal Code 2015, in particular non-violent crimes, and by providing greater transparency about the numbers, methods and associated crimes relating to its use (New Zealand); Abolish the death penalty for all crimes, and consider ratifying the Second Optional Protocol to the International Covenant on Civil and Political Rights, aimed at abolishing the death penalty (Uruguay)

6.142 Further reduce the list of offences punishable by death, eliminate the death penalty for “activities against the people’s government”, “espionage”, “embezzlement”, and “taking bribes” as well as for serious drug offences (Germany); Continue to reduce the number of crimes subject to the death penalty and consider introducing a de facto moratorium on its application (Mexico); Continue to reduce the scope of crimes subject to the death penalty only for “most serious crimes” and consider introducing a moratorium (Norway); Continue the process of reduction of offences subject to death penalty, until the abolition of the capital punishment and to publish statistics on the use of death penalty in Vietnam (Romania); Further reduce the offences punishable by death penalty and provide official figures regarding death sentences and executions; consider to introduce a moratorium of death penalty (Italy)

6.143 Reduce further the list of crimes punishable by the death penalty, in particular economic crimes and drug-related offences, and envisage a complete moratorium on the application of the death penalty (Switzerland)

6.144 Assist the process of national discussion on death penalty with a view of its eventual abolishment (Ukraine)

6.146 Restrict the use of the death penalty to crimes that meet the threshold of “most serious crimes” under international law (Belgium)

6.290 Cease applying the death penalty for non-violent crimes, including drug offences (Australia)

6.291 Introduce a national moratorium on the death penalty, aiming at complete abolition. Until then, reduce the number of crimes subject to the death penalty, ensuring that it does not apply to offences other than the “most serious” crimes, in accordance with International Covenant on Civil and Political Rights (Sweden)

A group of Jarai people in Vietnam’s Highlands. Photo courtesy: Thinh Nguyen.

Discrimination, Inequalities and Vulnerable Groups

6.90 Continue efforts in eliminating inequalities in access to public services (China)

6.92 Increase efforts in addressing discrimination, in line with its international obligations, and towards improving its legal framework against gender-based violence (Greece)

6.93 Enact legislation to ensure access to gender affirmation treatment and legal gender recognition (Iceland)

6.96 Continue to conduct studies with a view to amend existing or introduce new legal instruments to eliminate all forms of discrimination against people living with HIV (Malaysia)

6.97 Take further steps to ensure the protection of all vulnerable groups in society including LGBTI persons (Malta)

6.98 Legalize same-sex marriage before the next UPR (Netherlands)

6.99 Explicitly provide “sexual orientation” and “gender identity” as a forbidden ground of discrimination in the revised Labour Code and other relevant laws (Norway)

6.107 Take further measures to reduce inequalities and enhance access to services especially to vulnerable persons, including women, children and disabled (Bhutan)

6.108 Review the Labour Code and the law on gender equality to include a detailed definition of sexual harassment (Canada)

6.109 Develop legislation against discrimination on the grounds of sexual orientation and gender identity (Chile)

6.153 Set up a robust legislative framework prohibiting and sanctioning all discriminatory practices, enabling victims access justice (Madagascar)

6.170 Take measures to combat religious motivated violence and harassment and ethnic discrimination and inequality (Brazil)

6.217 Revise the Penal Code and the Criminal Procedure Code and criminalise all forms of violence against women, raise public awareness on gender equality and combating discrimination against women and girls, enhance efforts and measures to prevent and combat human trafficking, especially that of women and children (Hungary)

6.229 Adopt marriage equality legislation, extending full marriage rights to same-sex couples (Iceland)

6.230 Review the Law on Marriage and Family with a view to setting the same minimum age for marriage for women and men (Zambia)

6.231 Review the law on marriage and the family to guarantee the equality to same sex couples (Canada)

6.259 Step up the efforts for the participation of woman in political and public life and their representation in the decision-making bodies (Ethiopia)

6.260 Prohibit all forms of violence against women and strengthen women’s access to justice (Iceland)

6.261 Continue to strengthen measures to prevent abuse and violence against women (Japan)

6.262 Adopt a national plan of action to prevent all forms of violence against women and assign sufficient resources for its implementation (Spain)

6.263 Further invest in women’s economic empowerment and promote decent work for women in partnership with relevant international organizations (Thailand)

6.268 Implement the policy on promoting gender equality and bridging the gender gap, which focusing on enhancing the role and participation of women in the political, economic and social spheres (Cambodia)

6.284 Develop, in line with the Convention on the Rights of Persons with Disabilities, community-based and people-centred mental health services that do not lead to institutionalization and over medicalization and that respect the free and informed consent of persons with mental health conditions and psychosocial disabilities while combatting stigma and violence against them (Portugal)

6.288 Pursue efforts to adopt national legislation to ensure further respect of the rights of migrants, to prepare the ground for the International Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families (Egypt)

6.289 Continue its efforts on prevention and reduction of statelessness through among others reacquisition of Vietnamese nationality and prevent children statelessness (Kenya)

Protest in Ho Chi Minh City on June 10, 2018. Photo courtesy: Facebook, unknown author.

Fundamental Freedoms

6.42 Enhance efforts to comply with the recommendations accepted during the second Universal Periodic Review cycle on guaranteeing the right to freedom of expression (Chile)

6.168 Take steps to guarantee freedom of opinion and freedom of expression, including on the internet, in the context of the adoption of the law on cybersecurity (France)

6.179 Protect civil and political rights, especially freedom of expression, peaceful assembly and association (Luxembourg)

6.184 Restrictions on freedom of expression, and particularly online freedom, be lifted in line with Vietnam’s obligations under international law (Ireland)

6.189 Strengthen efforts to ensure the freedom of expression, including in the digital environment (Peru)

6.195 Ensure freedom of expression, including online, and promote actions to ensure freedom and independence of the media (Japan)

6.196 Continue the measures aimed at lifting all restrictions on the right to freedom of opinion and expression and to allow bloggers, journalists and other internet users to promote and protect human rights (Romania)

6.199 Enhance efforts to guarantee freedom of religion or belief, also by further reducing administrative obstacles to peaceful religious activities and by combating violence and discrimination on religious grounds (Italy)

6.200 Adopt legislative changes to guarantee the protection and free exercise of freedom of expression, association and peaceful assembly (Spain)

6.206 Take the necessary measures to eliminate administrative barriers in order to guarantee exercise of freedom of worship (Angola)

6.207 Enact laws to provide for freedom of assembly and peaceful demonstration in line with the International Covenant on Civil and Political Rights (Australia)

6.209 Take further steps to ensure an independent and pluralistic media landscape, including by reducing political influence on media outlets (Austria)

6.210 Safeguard freedom of religion and believe for all in Vietnam (Kenya)

6.213 Increase and ensure Vietnamese citizens’ access to information, including by increasing radio and television coverage in all parts of the country (Cyprus)

6.236 Allow for the establishment of independent trade unions and to recognize their right to organise (Canada)

Four death-row inmates from left to right, Ho Duy Hai, Le Van Manh, Nguyen Van Chuong, Dang Van Hien. Photo courtesy: Luat Khoa.

Judicial System, Fair Trials and Due Process

6.147 Ensure that evidence obtained through torture is inadmissible in trial in keeping with Viet Nam’s obligations under the Convention against Torture (New Zealand)

6.148 Take steps to prohibit harassment and torture during the investigation process and detention and punish the perpetrators (Togo)

6.150 Abolish immediately at all levels the exercise of outdoor trials to ensure the right to the presumption of innocence, effective legal representation and fair trials (Denmark)

6.152 Revise the judicial system to provide a safer environment to victims in case of all crimes (Hungary)

6.156 Pursue judicial and institutional reforms to bring them into line with international human rights standards (Senegal)

6.158 Ensure that fair trial guarantees and due process rights, as provided in international law and standards, are respected and upheld in all cases (Slovakia)

6.164 Amend the Criminal Procedural Code so that persons are represented by a lawyer immediately following their arrest and to guarantee their right to a fair trial (Canada)

About the Author

Shiwei Ye is an Asia-based independent human rights analyst, strategy advisor, trainer, and civil society consultant.

Human Trafficking

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

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

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

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

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

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

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

What is Vietnam’s current situation?

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

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

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

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

Who are the primary victims and offenders of trafficking activities?

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

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

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

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

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

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

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

What are the common forms of trafficking?

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

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

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

What are Vietnam’s prosecution laws against trafficking?

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

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

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

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

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

What improvements could be made by Vietnam?

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

These recommendations focus on:

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

Bibliography:

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

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Death Penalty

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bibliography:

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

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

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

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

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

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

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

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

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

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Internet Freedom

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

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

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

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

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

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

Why is it not legally binding?

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

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

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

Decision 847 cannot regulate social media users and providers.

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

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

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

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

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

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

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

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