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Vietnam’s Travel Bans Infringe on Activists’ Rights And Violate Own Constitution

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Vietnamese police officer stands behind a barricade in Hanoi. Photo credits: AFP/Ye Aung Thu

On November 20, 2019, Father Nguyen Dinh Thuc, a Vietnamese Catholic priest, posted on his Facebook page that he was not allowed to leave Vietnam to go to Japan to meet with the Pope during the papal visit to Asia. The immigration police gave Father Thuc a document explaining the reason why the government did not allow him to travel abroad. It stated that the priest was banned from leaving Vietnam because the authorities believed they were preventing possible crimes against “national security and public order” according to Article 21, Section 6 of Decree 136/2007/ND-CP. This decree was issued (link in Vietnamese) by Vietnam’s executive branch on August 17, 2007.

This was not the first time Father Thuc was prevented from traveling overseas. About two years ago, he was also blocked from traveling to Taiwan to attend meetings with Taiwanese civil society organizations regarding an environmental disaster involving a Taiwan enterprise, the Formosa Plastics Corporation. In one of Vietnam’s four central coastal provinces, Father Thuc had helped some of the victims of the Formosa incident voice their concerns over a legal fight and the aftermath of the disastrous environmental situation. 

The case of Father Thuc again demonstrates how the Vietnamese government bans human rights activists from traveling in order to stop them from participating in international advocacy efforts. The Vietnamese authorities have confiscated the passports of more than 100 Vietnamese activists, banning them from traveling by citing the same legal section: Decree 136/2007/ND-CP. Activists are deemed by police as a threat to Vietnam’s national security and public order when they go abroad. 

This incident also explains why we seldom see activists from Vietnam taking part in international advocacy for human rights in Vietnam. And even when activists do travel, they may not want to expose themselves publicly during advocacy events for Vietnam’s human rights because they could lose their passports upon returning home. Dinh Thao, an environmental and human rights activist, had her passport confiscated after being detained for several hours by police after returning to Vietnam this month. In the last three years, she traveled the world publicly advocating for human rights in Vietnam, and the confiscation of her passport was the price she had to pay for her actions. 

The story of Dinh Thao is the same dilemma that almost all Vietnamese activists have had to deal with in the past five or six years. If they travel abroad and publicly advocate for human rights in Vietnam, they face the possibility of being blocked from traveling again after they return to Vietnam.  When Vietnam underwent its second Universal Periodic Review (UPR) in 2014, activists accused the government of reprisals when it prevented activists from leaving the country to advocate for Vietnam’s human rights. Among them, Paulo Nguyen Ho Nhat Thanh, Pham Chi Dung, and Nguyen Bac Truyen were not allowed to depart the country to go to Geneva, Switzerland in January and February 2014 when their passports were confiscated. Pham Le Vuong Cac was also detained and had his passport confiscated in August 2014 when he returned to Vietnam after attending the UPR in Geneva. During the last UPR in 2019, Nguyen Thi Kim Khanh, wife of political prisoner Truong Minh Duc, participated in advocacy activities to raise her husband’s case in Europe and was detained for five hours upon her arrival in Vietnam. The police also took her passport without any judicial oversight, stating it was for national security.

Without their passports, these activists are prevented from traveling abroad and if they leave the country without it, they risk being considered illegal immigrants or worse, being accused of taking part in human trafficking schemes. 

The ban on activists traveling overseas is illegal, and it also directly violates Vietnam’s 2013 Constitution. Article 23 of the Constitution guarantees that “citizens shall enjoy the freedom of movement and of residence within the country; and can freely travel abroad and return home from abroad.” By issuing governmental decrees like Decree 136/2007/ND-CP in 2007, the Vietnamese government has violated the rights of its citizens. 

These decrees were not introduced, debated, and passed by the legislative branch but were executive orders whose constitutionality should ideally be decided by a judicial review. Sadly, Vietnam’s court system is not independent, and there is no constitutional court in the country. The government is able to issue unconstitutional decrees to suppress people’s rights without having any form of checks and balances. 

The right of movement has met the same fate as the right for peaceful assembly: both of these rights have been violated by governmental decrees with the people having no means at all to fight back. In Vietnam, the National Assembly’s Standing Committee has the right to exercise the power to interpret the law, including constitutional law. This is the committee that can decide whether a law or a decree is constitutional. Unfortunately, the Standing Committee has never exercised that power.

The government also does not notify activists when it puts their names on a “no travel ban” list, and some of them only find out upon arrival at the airport, as was the case of Father Thuc. Some people, such as Dinh Thao, had their passports confiscated by the police immediately after they returned to Vietnam from overseas. 

And yet, when the authorities infringe upon these activists’ right of movement, the police do not even follow the prescriptions as stated in Decree 136/2007/ND-CP. Article 22, Section 1(d) of this decree states that if a person is prevented from traveling because he or she is suspected to be a threat to national security or public order, such a decision to ban travel must be issued by the minister of the Ministry of Public Security – the head of the national police. In reality, none of the documents banning activists from traveling are signed by the minister. In the latest case of Father Thuc, the decision was signed by an immigration police officer, Lieutenant Colonel Phan Huan. 

Human rights activists in Vietnam face blatant violations of their rights by the government daily as reprisals for their work, but the government cannot stop the democracy movement from expanding. The activist community continues to grow and they willingly face harassment and imprisonment. In recent years, Vietnam has arrested more people for political dissent and handed down harsher sentences. Posting on Facebook with information that the government dislikes may land a person in jail for a decade, as we saw earlier this month. But at the same time, more people are willing to write and expose corruption and official wrongdoing in Vietnam. This is a time for political change and Vietnamese citizens want to be a part of this change. They are increasingly daring to face the consequences. 

In all of the human rights dialogue that the West participates in with Vietnam, putting an end to the travel ban should be top priority. If that happens, then the world will be able to hear Vietnamese activists express their struggles on the international stage. The advocacy to improve the human rights situation in Vietnam should start with eliminating the travel ban now.

Opinion-Section

How Can The EU Parliament Convince Us That Vietnam Will Improve Its Human Rights Record When Dissidents Continue To Get Jailed For Exercising Their Rights?

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Photo credits: tapchitaichinh.vn

The European Union – Vietnam Free Trade Agreement (EV-FTA) is expected to be a comprehensive win-win deal for both sides, ambitiously seeking to improve trade and boost mutual economic growth. As with all free trade agreements to which the EU is a party to, a human rights clause is built into this FTA with Vietnam. Many EU officials and parliament members that I have met in the past two years through my advocacy for Vietnam’s human rights situation earnestly believe that Vietnam will improve its record once the FTA takes effect. 

In the past, these friends have asked me to have some faith in the current regime, assuring me that our Vietnamese human rights activists and defenders will have better days in the future. It is a very typical “give them more time” argument that they expect me to accept. Yet the record shows that Vietnam’s aggression against human rights activists increases every year while government-controlled courts continue to hand out harsh sentences. I often wonder how EU officials still want to convince me to have such faith? 

In March 2019, I met with an EU official who was participating in the negotiations of the EV-FTA. She expressed great sympathy for human rights defenders in Vietnam and even realized the situation for human rights there was worrying. And yet, towards the end of our conversation, she asked me what I thought about one of Vietnam’s ministers, whose name I will not disclose. She seemed to be fond of the guy and praised him for belonging to a “progressive group in the Vietnamese Communist Party (VCP)” that she said hopefully would one day push for an improvement in human rights in the country. 

As a democracy activist, I personally think that regardless of whether a person is progressive or not, none of the VCP members right now would dare to inch away from the Party’s political monopoly inside the country. And I frankly stated that the Ministry of Public Security – the national police – would never allow any official to raise his or her voice over the human rights situation in Vietnam. Asking for political pluralism, an improvement in the human rights situation, and democracy would place anyone in danger of being sent to prison for more than a decade, as the latest political trials have shown this year. 

I met with the official right after attending the United Nations Human Rights Committee’s 125th session in Geneva, Switzerland where the Committee completed its third periodic report on Vietnam’s implementation of the International Covenant on Civil and Political Rights (ICCPR). Vietnam submitted its report after a 13-year delay in December 2017–the original deadline was set for August 2004. The Committee sadly acknowledged that in Vietnam’s review “less information was provided on the actual implementation of ICCPR and application of domestic laws in practice, where concrete data was crucially lacking.” 

Vietnam ascended to the ICCPR in 1982, but with regard to complying with the international covenant on human rights, it didn’t actually provide any opportunities for people to learn and exercise their rights. More than that, the government did not allow the Vietnamese people to use the ICCPR in courts to defend themselves when such rights were being violated. 

The point is that more than three decades after Vietnam joined the ICCPR, the human rights situation in Vietnam remains hopeless and people’s rights are being violated on a daily basis. How can we believe that the EV-FTA will improve such a situation when the ICCPR has so far failed so miserably?

I began to write this article after receiving the news that a close friend, an activist from Vietnam, had been detained upon arrival at the Noi Bai International Airport, where she was put into detention by 10 security police. Dinh Thao is an environmental and human rights activist who left Vietnam to study and work abroad as an advocate for human rights more than three years ago. She was a medical doctor before becoming an activist and I am sure some of the EU parliament members must remember her because she advocated for Vietnam’s human rights situation in Brussels a few years ago and may have met some of them. 

Thao is non-violent and even created a project to educate people about peaceful demonstrations. Yet she was detained by the police immediately after her arrival in Vietnam. What crime did she commit to deserve such treatment? Or is it just simply the fact that the government violated her rights in retaliation for her advocacy internationally for more human rights in Vietnam? 

On the same day that Dinh Thao was detained, November 15, 2019, another Vietnamese was sentenced to 11 years imprisonment and five years of house arrest. Nguyen Nang Tinh, a  music teacher who also advocated for human rights and democracy for Vietnam, was accused by the state of “propagandizing against the government” via his Facebook posts. Tinh denied that the alleged Facebook account belongs to him, but if you read the posts in that account you’ll see that there was nothing that called for a violent overthrow of the regime. If you search for him online, you will see videos of him teaching young children patriotic songs, songs that demand human rights for the people. How could his activities be called “propaganda against the state”?

As I have worked to protect the human rights of activists in Vietnam for many years, I have often recounted their stories to many Western politicians and officials. The activists I have met are people who had the opportunity to learn about the concept of human rights and who then started to defend such rights for others and also sometimes for themselves. They are the people who believe in the spirit and the universal values of human rights and they also believe that international laws, such as the ICCPR, will protect them. They probably had hoped that the ICCPR would be implemented in Vietnam at their trials. But that hope was never realized because we have never seen arguments articulating any of the articles of the ICCPR, such as Article 19, which protects the freedom of expression, presented in Vietnamese courts. 

And as a result, human rights activists and defenders have often typically been sentenced in rushed one-day trials without an independent judiciary. Sometimes the decisions handed down include lengthy jail sentences, as in the case of Nguyen Nang Tinh, which happened this month. 

In response to the EU officials who asked me to “have faith” in the regime, I point to a database built by the independent civil society organization The 88 Project, which catalogues the arrest and detention of political prisoners in Vietnam. A representative of that organization informed me a few days ago that in 2018, the Vietnamese government had arrested 145 people. These arrests showed the authorities’ blatant violation of the human rights of citizens. That number was greater than the number of arrests Vietnam made in 2017, 2016, and 2015 combined. In 2018, the number of arrests went up because the government detained and sentenced many people after large demonstrations happened in June 2018, in protest against the new cybersecurity law and the development of special economic zones with Chinese investment. 

It is not only human rights activists who are being treated unfairly and who are suffering mistreatment in Vietnam. There are also other groups, such as the workers, for whom the EV-FTA probably has some aspirations to improve their work environment and living standards. Many EU Parliament members have urged the Vietnamese government to quickly ratify the remaining three International Labor Organization (ILO) conventions prior to EU voting on the trade deal. Vietnam has promised to ratify the three ILO conventions over a time period of five years beginning in 2018. However, ratification of international laws is one thing, while the reality of how the Vietnamese authorities have failed to improve workers’ lives is another story. 

In Taipei, Taiwan, legal migrant workers from Vietnam went on a protest this month to demand the abolition of broker fees that each of them had to pay to be able to work in Taiwan. These broker fees are considered to be part of the most exploitative system of all of the countries in Southeast Asia from which these workers come from. What does the Vietnamese government know about this system and why does it allow such a broker fee system to continue to exploit their people? Would the EV-FTA be able to eradicate that system to improve the lives of these workers? How can I have the faith to believe that the Vietnamese government will ever take care of these people? 

Recently, Prime Minister Hun Sen of Cambodia released 70 opposition activists in order to improve his country’s human rights image after the EU threatened the withdrawal of special trade preferences. Cambodia’s political system has many aspects that are far better than in Vietnam. That country at least has an opposition political party – the Cambodian National Rescue Party (CNRP). On the contrary, the Vietnamese Communist Party has a political monopoly and we don’t have a single other political party. 

Running for office as an independent candidate will not lead to any success as the 2016 elections have demonstrated. Being a member of a political party that was formed overseas was the reason that Vietnam sentenced a 70-year-old Vietnamese-Australian man, Chau Van Kham, to 12 years in prison earlier this month. 

And yet, the EV-FTA provides for a lot more benefits for Vietnam than compared the trade preferences that Cambodia would get from the EU. How can Cambodia demonstrate a greater willingness to improve its human rights record while Vietnam just keeps getting worse? How can I have faith that Vietnam will eventually improve?

During these days, police brutality in Hong Kong has increased dramatically as we see from the recent news coming out from universities there. And as we support and pray for young people there, I hope none of the international politicians and officials will say “give China more time” so that they can resolve their human rights problems. 

In my personal capacity, despite all my efforts, I have yet to make Vietnam’s human rights situation become more well-known in the world. However, I can not look at all of my human rights activists friends in Vietnam and tell them to be patient and to give the government more time. 

We need to raise our voices and demand right now that the Vietnamese government make an effort to improve its human rights record. Should Vietnam make some improvements prior to the EU Parliament vote on the FTA trade deal? Yes, absolutely. Vietnam has to show its good faith by releasing the more than 200 political prisoners who are currently serving time and by allowing the emergence of political pluralism with fair and free elections. 

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39 Vietnamese Froze To Death In England: A Question On The Rule Of Law

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Vigil in Hanoi, Vietnam for the 39 dead people. Photo credits: Green Trees

“No one is above the law, but no law is above basic decency, justice, and kindness.”

This sentence is one of the first things you will see on my Facebook profile, right below my profile photograph.

Today I want to share some thoughts about that quote, mostly in light of the recent tragedy in which 39 people were found dead in a refrigerated lorry in Essex, in the United Kingdom. I am not a professional lawyer, and I don’t claim to know everything about this issue. But I think some people need to reexamine their concept of “rule of law” and what it really means.

I do believe no one is, or at least no one should be, above the law. And this applies to everyone from presidents to illegal immigrants. It is true that illegal border crossing is a violation of the law. Staying and working in a country without proper legal documentation is also a violation of the law. Growing marijuana is a violation of the law in the UK. There is no question about that. And, if any persons violate the law, they should be tried in a fair and just manner, and if found guilty, should be punished accordingly.

That said, I completely agree that the 39 people who died in that lorry were violating British law as they illegally entered the country and had intended to stay and work there illegally, without paying taxes. Had they been alive and arrested by the authorities at the border or afterward, I would have completely agreed that they must be given a fair trial, and if found guilty of committing a crime, should have been convicted and punished according to UK immigration laws, which I assume to be deportation. If they had violated any other laws against the community where they intended to reside, they also should have been tried and punished in accordance with the law as mentioned above. It’s that simple. You break the law, you get punished by the law.

On the other hand, doing something legal isn’t always right, and doing something illegal is not always wrong. No law is above basic decency, justice, and kindness, that is my belief. And that extends to the way you treat people, even those who break the law.

Some people say that we shouldn’t have mercy or empathy for those who break or try to break the law. Some accuse these people of being “parasites”, “greedy” and “stupid”, who “disgrace” their own countries of origin in the eyes of the world. I’m not sure that those who work hard in another country to support their families at home can be described as “parasites”, “greedy”, “stupid”, or a “disgrace”. But I am certain the majority of people in the world do not see looking down on their less fortunate compatriots as a virtue or a source of pride. I think this shows a lack of basic decency and respect for other fellow human beings.  

Some people say that the 39 people who died deserved their fate because they broke the law and had to pay the price, that they should’ve seen it coming. These 39 people, of course, would’ve broken several laws had they been successful in their (supposed) attempts. Are any of these laws punishable by death? Not that I know of. Do you think anyone who violates these laws should be given the death penalty? I don’t, and I’m fairly sure most people don’t either.

So how, exactly, did these people “deserve to die” for breaking those laws? How, exactly, did these people “deserve to die” for wanting to make more money even if they and their families were not that desperate? How, exactly, did these people “deserve to die” for not choosing the legal way to work overseas?

People who break the law deserve punishment in accordance with the law. But they don’t deserve to die, especially in that manner. It is not just.

Such responses demonstrate a lack of empathy and kindness that is, unfortunately, still quite common, not just in Vietnam, but also around the world, despite many efforts to promote the importance of empathy in our society. Empathy is the ability to put yourself in someone else’s shoes to understand their rationale and feelings. We cannot be kind to others without having empathy, without being able to look beyond ourselves and focus instead on other people.

Understanding the context is an important first step in developing empathy and kindness. Context is integral at every step of the legal process, from lawmaking to handing judgments and punishments, and in the everyday assessment of any situation or person. Jumping to conclusions without considering all contextual information and imposing your own views onto the problem can be dangerous, as you will be focusing on the surface problem and blinded to other underlying issues. You won’t be able to understand fully and correctly either the whole picture itself or the people involved. That lack of understanding will lead to bad solutions that won’t solve problems, but which will likely make things even worse.

Most importantly, I believe kindness makes the world a better place. Don’t confuse being kind to be lenient. It is not mutually exclusive to hand out just judgments and punishments while at the same time trying to understand and treat people well to help them right their wrongs. That is what I believe to be restorative justice instead of retributive justice. I suggest we not focus on their shortcomings, but rather on how we, as a society, as a country, as humanity can help the victims’ families and prevent as many people as possible from suffering such tragedies ever again. That requires not cruelty and apathy, but a balance of rationality and empathy.

The rule of law doesn’t mean you must uphold the law over people without exception. It doesn’t mean people who break the law are bad and don’t deserve our mercy or respect. It doesn’t mean that we can just punish someone and be done with it. We need more than just the rule of law to run our society in a way that improves most if not all of us. We need to have basic human decency, justice, empathy, and kindness in dealing with each other.

This tragedy is a failure and a lesson for all of us Vietnamese as a society and as a country.

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A Sexual Predator Walked Free As Arbitrary Application Of The Law Failed Everyone In Vietnam

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Illustrative picture of sexual assault victim. Photo credit: INIMAGE

A perpetrator in a sexual assault case was caught on tape in Hanoi where he forcefully came onto a woman in an elevator of a building and kissed her on the lips.

The news coincided with what would have been about one year after the #MeToo movement first marked its impact in Vietnam. Last year, an intern at Tuoi Tre newspaper went public about her sexual harassment allegations against her boss in April 2018.

The recent sexual assault case stirred up even more public outrage in Vietnam this time and made headlines on international news outlets as well.

It is because the police in Hanoi only issued an administrative fine against the perpetrator where the whole world had already watched what he did to the woman and believed criminal charges should have been filed.

Images of him assaulted the victim was spreading rapidly online, but anger erupted on social media – from both men and women alike – after the authorities announced the fine of 200,000 VND (Approximately USD 8).

The public felt that the legal system had failed them.

During March 11-12, 2019, Vietnam underwent its third review under the International Covenant for Civil and Political Rights (ICCPR) in front of the Human Rights Committee in Geneva, Switzerland. The recurring theme for the line of questions from the Committee concentrated on the ability of Vietnamese citizens to utilize their national legal framework to protect their human rights.

Vietnam’s legal system often faced criticisms from the international community due to its arbitrary application of the law in political cases. Vaguely defined penal codes under the category of “national security” crimes have been used to silence dissidents.

Most often, political opinions are all deemed to be either act of subversion against the people’s government or propaganda against the state.

And as such, for a while, arbitrary application of vague penal codes seem to be the problem that only political dissidents face in the country. Naturally, the call to reform the legal system in Vietnam has mostly been originating from this same group.

However, all of that has changed in March 2019 with this sexual assault case.

In just one night, an online campaign started by two young female activists, Ngoc Diep Dao and Nguyet Ha, on change.org gathered over 2,000 signatures.

The petition calls for legal reforms in the country with a specific request to the National Assembly to pass new legislation protecting victims of sexual assault and sexual harassment.

In recent months, the sexual assault in the building’s elevator was not the only case where the law failed to protect the victims of sexual assault and violence.

A nine-year-old girl alleged that a male adult raped and beat her, but the suspect was allowed to be released on bail because the authorities had deemed that his conducts were not dangerous enough to the community.

A male teacher who inappropriately touched his fifth graders was not criminally prosecuted.

The inability and unwillingness to prosecute the alleged perpetrators in these cases strongly highlighted the concerns of the Human Rights Committee during the ICCPR review: Vietnamese people currently do not have the support of a functional legal system to address their grievances when their human rights and their dignity are being violated.

The law enforcement, in the “elevator assault” case, arbitrarily applied a decree on protecting public order and preventing domestic violence instead of using a criminal code on assault.

The authorities’ excuse that Vietnam has yet to pass a specific penal code to punish the perpetrator in sexual assault and sexual harassment cases and therefore the law could not further protect the victim – as in the case at hand – is not a legally sound argument.

The forceful and unwanted kiss on the lips is a classic assault and battery. Vietnamese authorities in the past had sentenced a young woman to nine-month-imprisonment for slapping a police officer. The slap on the cheek or an unwanted kiss on the mouth have the same criminality in nature: they are both conducts that fall under the category of battery and assault.

While specific, well-defined sexual assault and battery crimes should and must be included in Vietnam’s Penal Code, at the same, we shall not tolerate the police who refused to apply a regular battery and assault charge against the perpetrator either.

It seemed that the Deputy Prime Minister, Truong Hoa Binh, might have agreed. On March 22, 2019, he had requested the City of Hanoi and its police to conduct a review of the case.

In the meanwhile, the people continue to voice their demand to change the current legal framework to protect victims of sexual assault and harassment.

Even though change.org itself is being blocked here and there in the country this year (coincidently after the new Cybersecurity took effect earlier in January), by the time this article goes to press, close to 4,000 Vietnamese people and 14 civil society organizations have signed the petition during the past four days.

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