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VIEW ON ASIA briefing
series
Lyndall J. Stoyles
November 2004
 Socialist
Republic of Vietnam
Capital: Hanoi
Head of state: Tran Duc Luong
Head of government: Phan Van Khai
Border countries: China, Laos, Cambodia
Vietnam[1] is a one party state, which is
ruled and controlled by the Communist Party of Vietnam (CPV). Since
the collapse of the USSR and the market-based economic reforms undertaken
by the Vietnamese Government in the 1980s, Vietnam has moved away
from defining its relationships on the basis of ideological considerations
and is taking an increasing role in the international community
through its participation as a member of the UN, ASEAN, ARF, ASEM,
APEC, the Non-Aligned Movement and has sought accession to the WTO.
Vietnam also has significant trading relations with a number of
countries within and outside the region. Japan is currently Vietnam's
most significant trading partner.
Vietnam has a population of over 76 million, with about 80% of
the population being ethnic Vietnamese. The remainder of the population
come from the country's 53 ethnic minority groups, which include
the Hmong and Tay in the north and west, the Montagnard in the central
highlands, the Cham in the south-central coastal plain and the ethnic
Chinese (Hoa) and Khmer in the south.
Mahayana Buddhism is the principal religion in Vietnam. There
are also significant religious minorities, including Protestant,
Catholic, Muslim, Theravada Buddhism, Hindu and Baha'i and the native
Hoa Hao and Cao Dai religions.
Despite the political, ethnic and religious differences between
Australia and Vietnam and Australia's participation in the war between
the United States and North Vietnam in the 1960s, Australia and
Vietnam are developing a bilateral relationship. This is principally
through trade with Australia being Vietnam's third largest customer
for exported goods and services and the 15th largest supplier of
imported goods and services to Vietnam. Australia also holds annual
human rights talks with Vietnam, which is now in its third year.
The Vietnamese/Australian relationship is also developing well
on an education level. RMIT University has established a Centre
for Systems Development with the Vietnamese National University
in Hanoi for the development of engineering programs. It has also
recently established a University in Ho Chi Minh City and undertakes
research in partnership with Vietnamese scientific institutions.
This has resulted in the development of a number of collaborative
research projects for Vietnamese and Australian university staff
and students into issues such as water quality and water treatment.
This paper provides an overview of the historical, political and
legal situation in Vietnam, discusses some of the key human rights
challenges currently facing Vietnam, and considers the issues these
challenges raise for Australia as a member of this region and trading
partner of Vietnam.
Historical overview
Since obtaining independence from the Chinese in 938 AD, Vietnam
has defended itself against a number of attempts by China to reintegrate
Vietnam as a Chinese province. Present day Vietnam was first unified
in 1802. In 1862, Emperor Tu Duc ceded several provinces in the
Mekong Delta to France as a colony of Cochin China. By 1901, Vietnam
had accepted French rule over the remaining territory of Vietnam,
which was divided into two protectorates: Tonkin in the Red River
Delta and Annam on the central coast.
The Communist Party of Indochina grew out of the early nationalist
and revolutionary movements which emerged in the decades before
the Second World War. The Party was established in 1930 and was
supported by the USSR. Although left-wing activities were banned
during the Second World War, secret networks continued to operate,
and in 1941 the Revolutionary League for the Independence of Vietnam
(Viet Minh) was formed under the leadership of Ho Chi Minh.
France maintained control of Vietnam until early 1945 when it
was deposed by the Japanese. The Japanese appointed a Japanese sympathetic
emperor, Emperor Bao Dai. Following the Japanese surrender in the
Second World War, Viet Minh took control of a number of mainly northern
provinces of Vietnam. In the same year, Bao Dai abdicated and the
National People's Congress headed by President Ho Chi Minh was convened
in Tan Trao on 16 August 1945. The Congress appointed a provisional
Government and Ho Chi Minh declared independence and the establishment
of the Democratic Republic of Vietnam on 2 September 1945. The First
General Election to elect the National Assembly was held on 6 January
1946.
After the conclusion of the Second World War, France regained
control over the south from the British and negotiated the withdrawal
of the Chinese in the north by March 1946. The relationship between
France and the Viet Minh degenerated by late 1946 which led to a
protracted guerrilla war, with China supporting the Viet Minh. The
war ended with the French defeat in May 1954. An agreement negotiated
in Geneva provided for a single Vietnam which was to be administered
in the north from Hanoi by the government of the Democratic Republic
of Vietnam and in the south by the government of the State of Vietnam.
The French under Bao Dai founded the southern government in 1949.
Ngo Dinh Diem overthrew Bao Dai in 1955 and more closely aligned
South Vietnam with the US creating tension with the communists in
South Vietnam. From 1963, the US provided military advice to South
Vietnam and subsequently provided military force in the war against
North Vietnam. Australia, New Zealand, Thailand, South Korea and
the Philippines also contributed forces in support.
The Vietnam War (known in Vietnam as the American War) devastated
Vietnam’s economy and environment, cost the lives of 1 million
Vietnamese combatants and 4 million civilians, and left millions
more displaced. Nearly 60,000 American soldiers also died or are
missing. Australia lost almost 500 of the 47,000 combatants they
had deployed. The war continues to impact Vietnam’s society,
economy and environment through the effects of, among other things,
the toxic chemical defoliant Agent Orange, landmines and unexploded
shells.
The war continued until an agreement was concluded in Paris in
1973, which provided for the withdrawal of the US and its allies
and notionally provided for the security of South Vietnam. However,
this security was not enforced and in 1975 North Vietnam overtook
Saigon and renamed it Ho Chi Minh City. Vietnam was formally reunified
on 2 July 1976 and the Socialist Republic of Vietnam was founded.
The CPV was founded in December 1976.
There were a number of disputes and tensions between Vietnam and
China from the 1970s over a range of issues, including border disputes,
the plight of Chinese living in south Vietnam, China's support for
the Pol Pot regime in Cambodia and Vietnam's alignment with the
USSR. Tensions continue today with disputes over claims in the South
China Sea, however the relationship appears to be improving with
a land border treaty being signed in 1999 and a maritime boundary
agreement signed in 2000.
Political overview
Vietnam is a one party state, which is ruled and controlled by
the CPV. The CPV has a constitutionally mandated role in the government
of Vietnam. This combined with all senior government positions being
held by CPV members enables the CPV to broadly determine the national
policy of Vietnam.
The CPV has authority over the implementation of social, economic,
labour, defence, security and foreign policy.
In 1986, the CPV implemented a program of limited market-based
economic reforms, known as “doi moi” (renovation) to
address the country's desperate economic conditions and changing
global circumstances with the end of the Cold War. The objective
of the reforms was to move Vietnam towards a market economy with
a socialist orientation. These reforms provided for some limited
privatisation and decentralisation of economic planning which allowed
for market forces to play a greater influence in determining prices
and production. Foreign investment was encouraged and agriculture
deregulated. The reforms contributed to the increase in economic
growth in Vietnam.
The CPV presently faces a number of difficult social and economic
issues with the overriding concern being how to ensure that its
existence continues in a more open economic environment.
In this new environment, there has been an increasing tendency
for the general public as well as members of the CPV to express
dissent. There are signs that the CPV is attempting to deal with
some issues by introducing reforms of the CPV to improve efficiency
and reduce corruption and channelling more benefits of economic
reform to rural areas. There have also been some signs of greater
political openness, including the release of a number of political
dissidents imprisoned for peaceful expression of their political
or religious beliefs in 1998 and 2000. However, as discussed below,
there are clearly limits to this reform.
Governance and legal overview
The National Assembly is the highest representative of the people
and State power. It exercises supreme supervisory power over the
implementation of the Constitution and laws. It has constitutional
and legislative power to decide the fundamental domestic and foreign
policy, socio-economic issues as well as defence and security issues.
The National Assembly approved the first Constitution on 9 November
1946. The Vietnamese regime is based on the key ideology of the
1946 Constitution that:
All the powers in the Democratic Republic of Vietnam belong to
the people who make use of State power through the agency of the
National Assembly and the People's Council elected by the people
and accountable to the people.
The National Assembly remains subject to the direction of the CPV.
Its members are elected but candidates are vetted by the CPV's Vietnam
Fatherland Front. However, the National Assembly is playing an increasingly
independent role as the organisation which receives concerns and
raises them with the Government. It has also been a critic of government
corruption and inefficiency, and has also made progress in the improvement
of the transparency of the legal and regulatory systems.
The President is the Head of State and represents Vietnam internally
and externally. The National Assembly elects the President from
its members. The President is responsible and reports to the National
Assembly.
The Government is the executive body of the National Assembly
and carriers out the overall management of the government. The Government
is composed of the Prime Minister, the Deputy Prime Minister, Cabinet
Ministers and other members. Other than the Prime Minister, the
members do not have to be members of the National Assembly. The
Government is accountable, and reports, to the National Assembly.
The judiciary remains subject to the influence of the CPV and
the Government. Although the Constitution provides for the independence
of the judiciary, in practice the CPV controls the judiciary by
selecting judges and maintaining a strong influence in high profile
cases, particularly those involving allegations that might harm
the CPV or the international reputation of Vietnam. The National
Assembly controls the judiciary's budget and the State President
appoints the judges from those selected by the CPV. The Supreme
People's Court, the Local People's Court, Military Tribunals and
other tribunals established by law are the judicial bodies of Vietnam.
The Supreme People's Court supervises and directs all judicial work.
The President of the Supreme People's Court is responsible and reports
to the National Assembly.
The Ministry of Public Security is primarily responsible for internal
security; it controls the police and enforces laws and regulations,
however the military has retained responsibility in remote areas.
Current political and human rights challenges
The marriage of political socialism and economic capitalism poses
a number of challenges for the Vietnamese Government and the people
of Vietnam. The move away from a centrally planned economy to a
market-based economy has a significant impact on the uniform distribution
of wealth and has the tendency to create real differences in the
benefits provided to the people. The difference in benefits and
ultimately welfare, is a social issue which the Government has to
manage.
As has been experienced in other countries, the move towards a
more liberal market-based economy away from a centrally-planned
and controlled economy, as well as the increase in foreign influence
resulting from the increase in foreign investment, contributes to
an environment which encourages public dissension.
The fact that the Government is almost entirely controlled by
members from the dominant Vietnamese ethnic group and minority groups
have little or no voice in the Government, leaves the minority groups
with little option but to voice their issues publicly by demonstrations
or on the Internet.
The Government has responded to these challenges in a number of
ways, some constructive, however there are others which raise serious
human rights concerns.
The positive ways in which the Government has responded include
the introduction of reform of the CPV to improve efficiency and
reduce corruption, and the development of ways to ensure rural areas
receive the benefits of economic reforms.
However, the Government has also attempted to reign in the dissension
from ethnic, religious and political minorities through force and
coercive ceremonies which require the minorities to renounce their
beliefs and swear allegiance to the Government and the CPV. The
Government has maintained media censorship, restricted freedom of
expression through the regulation of Internet usage. The Government's
ability to act in this way has been made possible by the nature
and structure of the Vietnamese legal system. The Government also
has not done enough to alleviate discrimination against women and
children.
Vietnam has ratified the International Covenant on Civil and Political
Rights (ICCPR) and has complied with its reporting obligations as
a party to the ICCPR, however it appears that many of the fundamental
rights guaranteed under the ICCPR are not upheld in Vietnam. This
is primarily because either the fundamental rights have not been
incorporated into the domestic law of Vietnam, or where the rights
have been incorporated into domestic laws, in practice the laws
are not enforced.
Amnesty International reviewed and reported to the United Nations
Human Rights Committee (“the Committee”) on the second
periodic report under the ICCPR by the Vietnamese Government. Amnesty
International welcomed Vietnam's compliance with the reporting process
but believes that Vietnam has failed to fully respect its obligations
under the ICCPR. Amnesty International identified that the failure
to uphold the fundamental guarantees of the ICCPR is most evident
in discrimination based on religion, ethnicity or politics, media
censorship, discrimination against women and children, and the inadequacies
of the judicial and legal system.
Discrimination on basis of religion or ethnicity
Article 18 of the ICCPR provides the right to freedom of thought,
conscience and religion. There is, however, a significant gap between
the rights guaranteed by this Article and Article 70 of the Vietnamese
Constitution. Article 70 provides:
The citizen shall enjoy freedom of belief or religion; he can
follow any religion or none. All religions are equal before the
law. The places of worship of all faiths and religions are protected
by the law. No one can violate freedom or belief and of religion;
nor can anyone misuse belief and religion to contravene the law
and State policies.
Article 70 fails to provide the people of Vietnam with the same
rights guaranteed by Article 18 of the ICCPR as the words "nor
can anyone misuse belief and religion to contravene the law and
State policies" provide significant scope for the Government
to control all aspects of religion, including which religions may
be practised and the way they may be practised. This is an example
of where the Government 'gives with one hand and takes with the
other'. The first part of the Article gives some positive rights
in respect of freedom of religion, while the last part of the Article
takes them away in certain circumstances by saying the rights will
only apply provided they are not misused and it is up to the Government
to determine whether or not they are being misused.
Furthermore, the limited rights granted by Article 70 are not
enforced in practice. Not all religions are equal before the law.
Only religions that have been officially recognised have legal rights.
To be authorised, the group must obtain Government approval of its
leadership and overall scope of its activities. Failure to comply
leads to persecution. The Government retains supervisory control
of authorised religions. All religious organisations have to be
affiliated with the CPV and an organisation called the Patriotic
Front. Government permission is required for many religious practices,
including general meetings, charitable activities, operation of
schools and ordination and promotion of clergy and travel outside
the country. Religious training must be approved by the State and
must promote the policy of “socialism”. State approved
churches are also required to promote Government policies on a wide
range of issues.
Any person who practices religion in a way regarded as hostile
to the State is liable to arbitrary arrest and detention for long
periods of time.
Repression of the Montagnards
The 2001 unrest
In February 2001, thousands of Montagnards held protests. Their
grievances included the confiscation by the Vietnamese Government
of their ancestral forest homelands, Vietnamese lowland settlers
taking their agricultural land, lack of freedom of worship (many
are members of unauthorised evangelical Protestant churches) and
denial of basic rights including education in native languages.
Some also called for independence of the Central Highlands region.
The Vietnamese Government quickly closed off the area. There were
a number of arrests and reports of torture and other abuses. At
lease 1,500 Montagnards sought asylum in Cambodia. Despite talks
between the Governments of Vietnam and Cambodia and the UNHCR, Vietnam
and Cambodia eventually commenced repatriating the asylum seekers
in ways that fell short of the UNHCR approved practices and procedures,
including forcibly deporting asylum seekers.
At least 38 Montagnards were sentenced in Vietnam to between 3
and 12 years' imprisonment for their involvement in the 2001 unrest.
Unconfirmed reports indicate that probably hundreds more were arrested.
In 2002, reports suggested that the Vietnamese Government was
continuing to target those accused of organising the 2001 protests
as well those with links to expatriate Montagnard groups advocating
independence and influential figures in the unofficial Protestant
churches.
It has been suggested by Amnesty International that the crack down
resulted from concern about the increasing number of converts to
the Protestant church. Converts have increased from 12,000 in 1975
to nearly 100,000 in 1996. The Government has criticised the church
as being a political organisation which is aimed at sabotaging unity
among ethnic groups in the Central Highlands, sowing division within
the Protestant Church in Vietnam, and creating political instability
in the Central Highlands.
The 2003 unrest
The repression of the Montagnards escalated in 2003. In February
2003, the Government issued new directives forcing Montagnard villages
to "swear brotherhood" with local party cadres. The directives
also instructed local officials to coordinate activities with hamlet
and village leaders, the CPV Fatherland Front and all departments
to "eradicate out-dated and backward ways and eradicate all
illegal religious organizations". The purpose of these directives
appears to be to rein in members of the Montagnard ethnic groups
by force (arrest and detention) or coercive ceremonies that require
them to renounce Christianity and swear allegiance to the Government
and CPV. The directives further the Government's desire to "better
manage religion" and achieve the goal of "great national
unity" which the Government appears to believe is the solution
to the problems of land, religion and ethnicity in the Central Highlands.
In support of the new directives, the Vietnamese Government arrested
a number of Montagnard Christians and those suspected as wanting
to flee Vietnam or for supporting the US based Montagnard Foundation,
Inc – an indigenous rights organisation. This followed a number
of arrests and church closures at the end of 2002.
A number of abuses appear to be continuing and include:
- closure and ransacking of churches;
- official prohibitions on nightime gatherings and travel outside
villages without permission;
- confiscation and/or destruction of villagers' farmland;
- interrogations and physical abuses; and
- posting police officers inside Christian homes to monitor activities
and prevent the residents from freely observing their religion
at home.
The repression of the Montagnards has led to an increase in the
flow of Montagnards seeking asylum in Cambodia. At least dozens,
but perhaps hundreds, have tried and failed to obtain asylum protection
from the UNHCR in Cambodia. In the first 3 months of 2003, more
than 100 Montagnards were forcibly returned from Cambodia to Vietnam.
Human Rights Watch has documented the fact that many Montagnards
have been beaten, detained or sentenced to long prison terms on
return to Vietnam.
The Cambodian Government announced in early April 2003 that it
would close the refugee transit centre operated by the UNHCR in
Phnom Penh as soon as the final 42 refugees had been resettled.
The failure by the Cambodian Government to offer protection to the
asylum seekers and means by which claims are assessed seriously
undermines the UNHCR's ability to protect and screen any asylum
seekers, including any new Montagnard asylum seekers and is likely
to lead to an increase in the number of asylum seekers seeking refuge
in countries outside the UNHCR process.
The 2004 Easter protests
On 10 and 11 April 2004, there were large scale protests in the
Central Highlands involving as many as 30,000 Montagnards. Montagnard
activists say that the protests were peaceful and aimed at pressing
for religious freedom and the return of ancestral lands in the Central
Highlands.
Reports from eyewitnesses obtained by Human Rights Watch indicate
that hundreds of demonstrators were wounded and many killed by security
forces and men in civilian clothes armed with clubs and metal bars.
The reports also indicate that since the protests there has been
a massive increase in the number of soldiers and police in the region.
Security forces have apparently been conducting extensive searches
of villages and surrounding areas to arrest Montagnards who fled
their villages to prevent them from seeking asylum in Cambodia.
Police have also allegedly been arresting people with relatives
in the US and Church leaders, regardless of whether they were involved
in the protests. Human Rights Watch suggests that this may be to
prevent them from informing people outside Vietnam about the atrocities.
Some Montagnards have attempted to cross the border to Cambodia
to claim asylum but apparently this has been difficult because of
the increased security presence on both sides of the border and
that Cambodia has continued to forcibly return Montagnard asylum
seekers. In July, the Cambodian Foreign Minister, Hor Namhong, supported
previous statements by Cambodian authorities that the Montagnards
were illegal economic migrants not legitimate asylum seekers.
However, as a result of intense international pressure, Cambodia
finally allowed UNHCR to access the Ratanakiri north eastern province
of Cambodia where a number of Montagnard asylum seekers were apparently
hiding. The UNHCR airlifted 198 Montagnards to a safe house in Phnom
Penh where their claims for asylum are being processed. It has been
reported that 42 Montagnards remain in hiding in Cambodia's north
eastern jungles.
Among the articles about religious freedom and prospects for growth
in the Central Highlands on the Voice of Vietnam website are a number
of articles about the henchmen of Ksor Ksor being responsible for
the "social disorder in the Central Highlands on April 10-11".
Ksor Ksor is the leader of an alleged terrorist organisation in
exile in the US. The articles explain that the henchmen responsible
for the "social disorder" openly made "their confessions
in front of local people and vowed not to commit crimes again".
The Foreign Ministry has accused Ksor Ksor and the US-backed Montagnard
Foundation Inc of carrying out terrorist acts, seriously violating
Vietnams laws and threatening Vietnam's security and territorial
integrity.
Repression of Hmong Protestants
There have been reports that Hmong Protestants in several north
western villages are suffering severe abuses, including detention
and imprisonment for practising their faith. The authorities have
justified their actions on the basis that the religion was illegal
because its purpose was to oppose the Government. There are also
reports of a systematic campaign on the part of local authorities
to force the ethnic minorities into renouncing their faith under
threat of physical abuse or confiscation of property and that some
have been beaten and killed for failing to renounce their faith.
Officials reportedly ordered many non-authorised Protestant gatherings
to cease, prohibited children of Protestant families from attending
school beyond the third grade, and soldiers reportedly moved into
homes to interfere with their ability to worship. The Government
charged persons with practising religion illegally by using provisions
of the Criminal Code which allow the Government to impose gaol terms
of up to 3 years for abusing freedom of speech, press or religion.
The Code also allows the Government to impose penalties for those
attempting to undermine national unity by promoting division between
religious believers and non-believers.
Detention of Buddhist monks
Prior to 1975, the Unified Buddhist Church of Vietnam (UBCV) was
a major religious force in South Vietnam. The UBCV has not been
authorised by the State and its monks have been detained by being
confined to their pagodas and remain cut off from the outside world.
In March 2003, the Supreme Patriarch of the UBCV, Most Venerable
Thich Huyen Quang, was released from house arrest where he had resided
since 1982. However, by the end of 2003, it appeared that several
leaders of UBCV, including the Supreme Patriarch, resided only in
their pagodas and appeared to be allowed to travel only with the
permission of security authorities. A number of other UBCV monks
have recently been sentenced for 2 years administrative detention
and compulsory surveillance.
Thich Tri Luc, a former Buddhist monk has been persecuted for
many years for being a member of the UBCV, for protesting against
the treatment of Buddhists, and for calling for the respect of religious
freedom. He has been imprisoned on numerous occasions in the past
decade on charges including "taking advantage of freedom and
democratic rights to infringe upon the interests of the state, social
organizations, and citizens". He fled to Cambodia and was granted
refugee status by the UNCHR in June 2002. However, on 25 July 2002
he was abducted by Vietnamese and Cambodian authorities and forcibly
returned to Vietnam where he "disappeared" for more than
a year. It has subsequently been revealed that he was detained on
charges of "fleeing abroad or defecting to stay overseas with
a view to opposing the People's administration". On 12 March
2004, the People's Court of Ho Chi Minh City sentenced Thich Tri
Luc to 20 months' prison on charges of distorting "the government's
policies on national unity" and for contacting "hostile
groups to undermine the government's internal security and foreign
affairs". In late June he was finally permitted to leave Vietnam
and now resides in Scandinavia.
Other examples of tensions between religious groups and the Government
include the October 2000 clashes between Hoa Hao followers and authorities
in the An Giang province. The clash related to the conviction of
a number of Hoa Hao followers for defamation of the Government and
abuses of democracy.
New Ordinance affecting religion
An Ordinance on belief and religion was signed on 18 June 2004
and will take effect on 15 November 2004. The Vietnam News Agency
reports that the Ordinance provides a legal basis to ensure people's
basic rights to belief and religious freedom provided by the Constitution
and reinforces the Government's management in this area. The Ordinance
institutionalises the CPV and the Government policies and guidelines
on belief and religion, including which religions may be practiced,
the authorisation of monks and clerics, and the places where religions
may be practised.
Of particular concern are the provisions of the Ordinance which
ban the use of the right to religious freedom to: undermine peace,
independence and national unity; incite violence; wage war; disseminate
information against laws; sow division among people, ethnic groups
and religion; cause public disorder; harm other people's lives,
health, dignity, honour and property; hinder people from exercising
their rights; and spread superstitious practices or to breach the
law. The Ordinance also bans individuals and organisations from
conducting religious activities that affect the country's security
and public order or which harm national unity, people's livelihood
or the environment.
Discrimination on basis of political belief
The rights guaranteed by Article 19 of the ICCPR to the freedom
of opinion and expression are not protected in Vietnam. The Vietnamese
Constitution provides that all citizens are equal before the law
(Article 52) but does not go as far as guaranteeing that all individuals
should enjoy the rights of the ICCPR without distinction. Specially,
Vietnamese law does not contain the duty to ensure that no distinction
is made on the basis of political or other belief and, in reality,
many individuals are imprisoned on the basis of political or other
belief.
Amnesty International is concerned that Vietnamese laws are drafted
to criminalise the right to freedom of expression, which means that
anyone with a different political view to the CPV and dares to say
so will be held to have committed a crime in Vietnam. The official
Voice of Vietnam website stated on 25 October 2001:
Taking advantage of the information super highway, reactionaries
in Vietnam transferred incorrect information on democracy in Vietnam
abroad. As a result, anti Vietnam forums and organizations' evidence
of Vietnamese violations of democracy is nothing but a hoax, revealing
their intentions to impose western-style freedom of democracy
and a US attitude towards religious and human rights issues. The
goal in spreading doctrines of freedom of democracy, ideas unfamiliar
to the history and culture of Vietnam and the socialist nature
of the country is to erode local Vietnamese people's confidence
in the socialist path and ruin belief in the homeland's future
for more than two million overseas Vietnamese. Some overseas organizations
and anti-Vietnam media agencies praised certain agitators as 'democracy
supporters', their discordant voices represent nobody but themselves.
Critics of the Vietnamese Government or CPV continue to face persecution,
arbitrary arrest and indefinite detention. For example, in January
2002, the Vietnamese Government ordered the seizure and destruction
of publications of retired former senior CPV official, General Tran
Do, and physicist, Nguyen Thanh Giang, pursuant to the new directive
which allows for the destruction of publications which are not authorised
by the CPV.
Four members of a democracy group formed in August 2002 to bring
domestic laws into line with the ICCPR have been arrested, Nguyen
Vu Binh, Pham Hong Son, Nguyen Khac Toan and Le Chi Quang. They
have each been imprisoned after very short trials for periods of
between 4 and 12 years on charges including espionage and committing
offences against the State.
In recent months a number of political dissidents have been imprisoned
on the basis of charges of "abusing democratic freedoms to
infringe upon the interests of the state". Dr Nguyen Dan Que,
a physician who has already spent nearly 20 years in prison for
his public appeals for a multiparty political system and an end
to censorship, was sentenced to a further two and a half years prison
for writing and publishing on the Internet an essay about state
censorship of information and the media. Pham Que Duong, a prominent
military historian and former army colonel and Tran Khue, a sociologist
and professor at the University of Ho Chi Minh City were both convicted
for 19 months' prison after they established an anti-corruption
organisation and signed a petition to Vietnam's National Assembly
calling for democratic reforms.
Members of ethnic minority groups in the Central Highlands who
disagree with the Government on how their region should be governed
have been sent to prison for up to five years for "distributing
propaganda and inciting the local ethnic minority to cause social
unrest".
The right of assembly is restricted by law and the Government
restricts and monitors all forms of public protest. Permits are
required in order to gather in a group and members of groups which
are perceived as having some political purpose are routinely denied
permits. This power is also used by the Government to restrict religious
gatherings.
Media censorship and control of Internet use
Not only is the right to freedom of opinion and expression guaranteed
by Article 19 of the ICCPR not protected in Vietnam, it is treated
like a crime. Individuals are subjected to harassment, detention
and imprisonment for expressing their opinions even peacefully.
The media is state controlled and access to information (including
on the Internet) is subject to legal restrictions. Journalists practice
self-censorship within the guidelines of the CPV and Government.
The guidelines are "enforced" by the Culture and Ideology
Commission of the CPV and Ministry of Culture and Information, which
monitors the media. The Ministry of Police has recently released
"Decision 71", which requires that any person wishing
to use the Internet to present their identification and write names
in a logbook. The Decision also limits the use of the Internet at
cafes or Internet shops to Vietnamese citizens.
Status of women and children in Vietnam
Vietnamese laws cover domestic violence, however it appears that
authorities do not enforce the laws.
The Vietnamese Criminal Code makes illegal the use of violence,
threatening violence, taking advantage of a victim who is unable
to act in self-defence, or resorting to trickery to have sexual
intercourse with a victim against that person's will. This appears
to criminalise rape and possible spousal rape and sexual harassment,
but there have been no known instances of prosecution for spousal
rape.
Problems remain with women being forced into prostitution as well
as trafficking in women for the purpose of sexual exploitation,
both domestically and internationally. Social discrimination against
women continues.
Children continue to be at risk of economic exploitation and wide
spread poverty has contributed to child prostitution and trafficking
in children for the purposes of sexual exploitation. This is despite
the trafficking of women and children being prohibited by the Penal
Code.
Inconsistencies between the rights guaranteed by ICCPR and the
Vietnamese judicial and legal system
There are a number of ways in which the Vietnamese legal system
fails to provide the same guaranteed rights as provided by the ICCPR.
Failure to prosecute for torture and other such behaviour
Article 71 of the Vietnamese Constitution provides that:
the citizen shall enjoy inviolability of the person and protection
of the law with regard to life, health, honour and dignity. ...
It is strictly forbidden to us all forms of harassment and coercion,
torture, violation of his honour and dignity, against a citizen.
However, the provisions to uphold these rights are weak and torture
is not a specific offence under the Vietnamese Criminal Code. Despite
evidence of torture or cruel and inhuman or degrading treatment,
particularly of political and religious dissidents, Amnesty International
is not aware of any person being tried and convicted for this type
of behaviour.
There are also unverified reports of torture and ill-treatment
of those arrested as a result of the unrest in the Central Highlands
in 2001. The reported conduct violates the ICCPR as well as Vietnamese
domestic laws.
Criminalisation of fundamental ICCPR rights
Certain Vietnamese laws criminalise some fundamental rights guaranteed
by the ICCPR, including sowing division between people and the people's
administration or social organisations; sowing division between
religious people; and undermining the implementation of policies
for international solidarity. These rights are used by the Vietnamese
Government to criminalise political and religious dissent from Government
policy and have lead to arbitrary arrests, detention and imprisonment
of those who oppose Government policy.
Death penalty
Vietnam has retained the death penalty as judicial punishment,
which is inconsistent with the right to life guarantee in Article
6 of the ICCPR. Executions are by firing squad and often take place
in public which is contrary to the UN Safeguards guaranteeing
protection of the rights of those facing the death penalty which
requires capital punishment where its occurs, to be carried out
so as to inflict the minimum possible suffering.
Concerns about the use of the death penalty are increased by the
unfair nature of trials and the failings of the Vietnamese judicial
and legal system.
Failure to guarantee fair trials
Article 14 of the ICCPR is regularly breached in Vietnam. Specifically,
the following rights are not guaranteed: the right to a fair and
public hearing by a competent, independent and impartial tribunal;
the right to be presumed innocent until proven guilty; the right
to have adequate time and facilities for the preparation of a defence
and to communicate with counsel of one's choosing; and the right
to call and question witnesses. Defendants often only meet their
lawyers on the first day of their trial and defence lawyers are
sometimes only permitted to plead for clemency rather than defend
the defendant and are often only permitted to question the defendant
with the agreement of the investigator.
Whilst there are provisions for the role of defenders and the
presumption of innocence, these laws are not observed in practice
particularly for people detained because of political activities.
Many trials for crimes attracting long sentences last only hours
and politically sensitive trials are held in secret.
Arbitrary detention and condition of detainees
The Committee was also concerned about the weakness and lack of
independence of the judiciary and lack of safeguards for detainees.
The Committee said in its report:
The Committee is concerned that the judicial system remains weak
due to the scarce number of qualified professionally trained lawyers,
lack of resources for the judiciary and their susceptibility to
political pressure.
Amnesty International has expressed concern about the conditions
of detainees in many prisons and the prolonged use of solitary confinement
reportedly used in some detention facilities.
The Vietnamese Government also uses administrative detention which
allows people to be kept under house arrest for up to 2 years without
intervention of a judge or judicial officer.
Can Australia help promote human rights in Vietnam?
The recent conduct of the Vietnamese authorities in persecuting
minority groups on the basis of preventing activities which undermine
"national unity", or "taking advantage of freedom
and democratic rights to infringe upon the interests of the state,
social organisations and citizens", and the conduct of the
Vietnamese and Cambodian Governments in dealing with the Montagnards
fleeing persecution from Vietnamese authorities, raises serious
human rights concerns.
The particular failure of the Cambodian Government to provide
protection to asylum seekers is a clear example of the type of response
from a country looking after its own self-interests to the detriment
of universal human rights norms and regional and multilateral mechanisms.
These issues are international issues with particular implications
for our region and need to be addressed by regional partners like
Australia. Australia has the capacity to develop a strong and mature
relationship with Vietnam not just as a means of pursuing positive
trade outcomes but also of promoting better political and civil
rights practices in the country.
In recent years, Vietnam has been increasingly willing to discuss
human rights issues, particularly those relating to technical and
training issues with the United Nations and countries, including
Australia. This has led to the commencement of an annual dialogue
between Australia and Vietnam on human rights, which have been taking
place since May 2002, with the most recent meeting taking place
in Hanoi on 24 June 2004.
While the current direction of Australia/Vietnam relationship
provides the best opportunity for Australia to raise human rights
matters with Vietnam, the question of Australia's authority on human
rights issues as well as the sensitivities about Australia's role
in the Asia Pacific region, its close relationship with the US,
the complexity of the US/Vietnamese relationship and the ideological
differences between Australia and Vietnam, means that Australia
needs to exercise caution in any discussion with Vietnam on substantive
human rights issues. Before Australia could really play any influential
role in addressing these issues, it must ensure that its own human
rights records are blameless if the dialogue process is to have
any real impact. Specifically:
- a number of Australian laws undermine the fundamental human
rights assured by international conventions to which Australia
is a signatory, with the only justification being that it is in
the "national interest" to do so. In particular, Australia
needs to address the failings of the laws relating to the treatment
of Australia's indigenous people and asylum seekers as well as
the recently enacted anti-terrorism laws. The laws of Vietnam
are an example of how dangerous it can be for human rights if
significant discretion is reserved to the Government, which allows
the Government to prefer the national interest over individual
human rights. Thankfully, although our laws in Australia provide
some discretion to the Government, our Government is elected democratically
so the people of Australia have a greater say, compared to the
Vietnamese, if they disagree with the approach taken by the Government;
and
- Australia should also examine the way in which its laws are
applied, particularly the laws underpinning Australia's "Pacific
Solution" and the way these laws impact on other countries
in our region. Australia's current approach to border protection
and migration is that Australia's interests should be protected
even if this is done in a way which undermines fundamental human
rights and causes detriment to our neighbours. Australia will
have no influence in this region until it adopts a regional approach
rather than a self-interested approach to issues relating to asylum
seekers. This does not mean that Australia has to forgo its own
interests but that its laws take account of both its own interests
as well as the interests of the region.
Australia's relatively small population, geographic isolation
and the fact that it does not receive a large number of asylum
applications places it in a unique position to adopt policies
which provide protection for fundamental human rights guaranteed
by international conventions. These laws could then be used as
an important starting point for Australia to engage with our countries
in the region on how the human rights challenges outlined in this
paper could be addressed.
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Internet resources
Amnesty International, www.amnesty.org
Australian Department of Foreign Affairs and Trade, Vietnam Country
Brief, July 2004, www.dfat.gov.au
BBC, Country Profile: Vietnam, news.bbc.co.uk
ABC Radio, Go Asia Pacific, www.goasiapacific.com
Humans Rights Watch, www.hrw.org
Reporters sans Frontières, Vietnam Press Releases, http://www.rsf.org/article.php3?id_article=8623
UNHCHR, Status of Ratification of Principal Human Rights Treaties,
2 November 2003, accessed 3 June 2003, www.unhchr.ch/pdf/report.pdf
United States Department of State, Vietnam Country Report on Human
Rights Practices, 2003, http://www.state.gov/g/drl/rls/hrrpt/2003/27794.htm
Vietnamese Embassy in Australia, www.vietnamembassy.org.au
Vietnamese National Assembly, www.na.gov.vn
VOA, Voice of Vietnam News, www.voanews.com
Vietnam News Agency, www.vnagency.com.vn
Voice of Vietnam, www.vov.org.vn
The author, Lyndall J. Stoyles, is a Sydney-based lawyer.
View on Asia is a publication of the Uniya Jesuit Social Justice
Centre, a research centre based in Sydney’s Kings Cross, Australia.
The views expressed in this report are those of the author. Please
email comments or corrections to Uniya.
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