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Human Rights

Online Campaign “If not NOW then WHEN?” Seeks To Stop Sexual Abuse In Vietnam

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Vietnamese Facebookers supported the "If not NOW then WHEN?" campaign. Photo Credits: Facebook Ngoc Diep.

An uncommonly successful online campaign is happening in Vietnam with thousands of signatures and with momentum is still going strong. The campaign – “If not NOW then WHEN?” – initiated by seven civil society groups and organizations on Change.org, is the Vietnamese people’s latest and loudest response to a series of highly publicized cases of sexual abuse and violence against women and children uncovered recently in the country.

In addition to signing this petition, hundreds of Facebookers also changed their avatars to include a frame with the slogan “If not NOW then WHEN?” and the hashtag #nhanpham200k (dignity200k) to promote this campaign.

The “200k” hashtag refers to the 200,000 VND amount that the Hanoi police has fined the perpetrator in a recent sexual assault case in March 2019. Although the perpetrator was captured on an elevator’s security cameras while assaulting a woman by kissing her on the mouth, the authorities decided to treat the case as an administrative violation and did not file charges against him. Such a decision has angered the entire nation that has watched the story where his criminal actions unfold on social media, leading some activists and organizations to decide to take action.

The “If not NOW then WHEN?” campaign was launched within a few days after the administrative fine of 200,000 VND was made public. And because the organizers want to stress that a person’s dignity is worth more than the 200,000 VND fine, they have included the hashtag #nhanpham200.

Citing loopholes in the law which allow for unjust decisions such as the 200,000 VND case, the campaign calls on citizens to demand Chairwoman Nguyen Thi Kim Ngan and other members of Vietnam’s National Assembly to take action and change the laws. Their goal is to appeal to the legislative branch to make changes in the Penal Code so that it would be more effective in both punishing the perpetrators in sexual harassment and sexual violence cases and preventing future sexual crimes.

According to Facebooker Ngoc Diep, one of the first activists who has initiated this campaign, the campaigners will collect signatures until early May 2019. Then, they will send them directly to the National Assembly before the beginning of their next congressional meeting – which is expected to commence on May 20, 2019.

By April 9, 2019, more than 13,000 people have signed the petition even though Change.org recently has been blocked in a few areas in Vietnam. It means that those who have signed the petition from Vietnam must take an extra step, which is to get over the firewall before they can add their names to the petition.

It also means that the demands contained within the petition are of great concern for a lot of Vietnamese people.

Why is there such a tremendous response from the public to this petition that led to so many people taking the time and making an effort to make a point about this issue?

Ngoc Diep explained that the campaign has identified with the people’s realization that there are loopholes in the law, which renders the system ineffective in bringing justice to the victims of sexual harassment and sexual abuse in the country.

Recently, several cases of sexual attacks on women and children have caused outrage in society, and yet the legal system was unable to bring the perpetrator to justice. The case in the elevator with the 200,000 VND fine was just one of many such cases.

In another case, a teacher was accused of inappropriately touching his fifth-grade students, but the authorities claimed that his conduct did not fall under the current definition of sexual abuse. The teacher went unpunished.

A suspect in a brutal beating and raping of a 9-year-old girl was allowed bail because the authorities found his conduct did not fall under the “extremely severe” category that would demand pre-trial detention.

Just a few days after the petition “If not NOW then WHEN?” had started, another video clip appeared on social media showing a toddler being grabbed and kissed by an older male stranger in an elevator in Ho Chi Minh City.

The campaign and its supporters have felt an even stronger sense of urgency now, that such change is not only needed but is also inevitable. They want to raise public awareness about sexual harassment and sexual abuse and demand that “the legitimate rights and interests of the people” be protected.

As such, they are hoping that more signatures will be added to the petition in the upcoming days. It is hoped that the increasing public pressure that comes with the petition will then force lawmakers to face this current social crisis of sexual harassment and sexual abuse and institute changes.

Among the demands, the campaign emphasizes the critical role of civil society organizations in raising community awareness, as well as preventing sexual crimes.

The campaigners are especially concerned with the lack of specific and coherent definitions for a variety of conduct that would constitute sexual harassment in the current Penal Code. They also pointed out that the law should also provide for better protection mechanisms for victims of sexual abuse and violent sexual crimes.

The Penal Code is not the only one that needs changes, according to these activists. The Civil Code also needs to be reformed with the guidelines for victims to receive restitution being improved.

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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