Speak Up, or Not: Lack of Freedom of Speech Protection in Vietnam, Its Global Impact, and Proposed Solutions for Adequate Remedies

• Citation: Vol. 48 No. 3
• Publication year: 2020
• topic: Constitutional Law,Criminal Law

Speak up, or Not: Lack of Freedom of Speech Protection in Vietnam, Its Global Impact, and Proposed Solutions for Adequate Remedies

H. Grant Doan^*

Table of Contents

I. Introduction................................................................................804

II. Background.................................................................................806

A. Historical Background and the Government's Structure.. 806
B. Case Studies: Arbitrary Arrests of Peaceful Protestors.... 808
C. Legal Background and the Legitimacy of the Arrests.......811

III. Analysis: Adequacy of Remedies.............................................814

IV. The Global Impact and International Responses................821

V. Proposed Solutions....................................................................828

VI. Conclusion...................................................................................831

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I. Introduction

On August 16, 2018, Le Dinh Luong (Luong) was put on trial in Vietnam and sentenced to twenty years in prison under charges of subversion in violation of Article 79 of the 1999 Penal Code.¹ A veteran and Catholic activist, Luong had publicly criticized Formosa Ha Tinh Steel, the Taiwanese corporation responsible for dumping toxic waste into the ocean, which caused a major marine environmental disaster off Vietnam's central coast in 2016,² as well as the lack of an adequate response from the Vietnamese government.³ He had been targeted by authorities and was taken into custody in July 2017. It was not until early July 2018, after almost a year of detention without a family visit, that Luong was granted permission to be represented by a defense lawyer for his trial scheduled a month later.⁴ The trial lasted one day with the judgment based entirely on the testimony of two witnesses for the government, neither of whom were "fit to testify."⁵ One of the witnesses later came forward to recant his testimony, claiming that he was beaten into making the forced confession.⁶ However, the court still upheld Luong's prison sentence.⁷

Luong was only one of many journalists and activists who were prosecuted for peaceful protesting or merely criticizing the Vietnamese government. Vietnam is a one-party state ruled by the Communist Party of Vietnam (Dang Cong San Vietnam, CPV). According to Human Rights Watch, many basic rights, including freedom of speech and the press, are restricted.⁸ The state controls all print and broadcast media, and authorities have actively and

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increasingly silenced journalists and bloggers through arrest, prosecution, and other means of harassment.⁹

Article 25 of the Vietnamese Constitution states that citizens "shall enjoy the right to freedom of opinion and speech, freedom of the press, of access to information, to assemble, [freedom to] form associations and [freedom to] hold demonstrations. The practice of these rights shall be provided by the law."¹⁰ When prosecuting individuals in spite of this constitutional provision, the government often masks the charges under "flagrant offense" to go around the Constitution, which requires a decision by a court or prosecutor to arrest any individual.¹¹ This approach provides the government with vast authority to arrest and detain persons "for significant periods of time under vague national security provisions of the penal code"¹² without judicial process.

Freedom of speech protection is often taken for granted in many Western countries, for it is always associated with democracy. It is perplexing then, that a non-democratic country like Vietnam would include this protection in the law. A scholar has come up with three possible explanations: freedom of speech assists with "enforcing central authority," "alleviates pressures for political change[s]," and "lend[s] legitimacy to a government."¹³ Considering the structure of the Vietnamese government and the treatment of peaceful protestors, the explanations seem eerily accurate.

This Note argues that Vietnam needs a more effective system of enforcing freedom of speech protection given the frequent arrests of activists and bloggers for peaceful protesting and the insufficient remedies available. This is a long-standing issue that has affected Vietnam in many other ways. However, implementation efforts may be futile or resisted because the root of the issue lies at the structure of the government, which is under heavy influence by the

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CPV. Part II of the Note will provide a brief historical background of Vietnam and an overview of the CPV and the structure of the government to illustrate this influence. Then Part II will then look at some case studies involving peaceful protests, as well as the government's reactions and its treatment of detained protestors. Finally, Part II will conclude by discussing the legal background and the legitimacy of the arrests.

Part III will identify possible remedies available for the protestors after they are detained. In particular, Part III will analyze whether or not the remedies are adequate or effective. Part IV of the Note will discuss the global impact of the lack of effective freedom of speech protection in Vietnam and the international responses considering that Vietnam is a member of the United Nations. Part V will advance proposals for certain changes and implementations, based on the legal structure in Vietnam and the global pressure, in order to better safeguard and enforce freedom of speech protection. Ultimately, the Note will conclude that, because of the rigidity of the government and the CPV's pervasive influence, many of these measures will be ineffective or impossible to implement.

II. Background

A. Historical Background and the Government's Structure

Vietnam declared its independence on September 2, 1945,¹⁴ but the French were still seeking to re-establish their control of the country. Following World War II, French troops landed in Saigon under the pretense of helping the British "disarm the Japanese," while in fact, two years later, instigating a war that lasted until 1954.¹⁵ After fighting off the French, Vietnam had to carry out another war against the United States until 1975.¹⁶ At the heart of the conflict during the Vietnam War, or as it is called in Vietnam the "War Against the Americans to Save the Nation" (Chi?n Tranh Ch?ng M? C?u Nu?c),¹⁷ was North Vietnam's desire "to unify the entire country under a single communist regime modeled after those of the Soviet Union and China."¹⁸ By the end of

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the war in 1975, the north prevailed and the unified country was later renamed the Socialist Republic of Vietnam.¹⁹

To understand the reasons for the peaceful protests and arrests of the activists, it is necessary to look at Vietnamese government and political structure. As the name suggests, Vietnam has a socialist regime and is one of the few remaining countries where the Communist Party is dominant.²⁰ The Constitution states that the CPV "is the leading force of the State and society."²¹ While only a political organization and not part of the State's institution, the CPV has a central role in the government as well as in the social and legal system in Vietnam.²² It has a close relation to the government and influences the government through the "election . . . of the National Assembly (Qu?c h?i similar to Congress in the U.S.), the operation of the administration, and the function of the judicial system."²³ On a day-to-day basis, the Political Bureau (Politburo) and the Central Committee of the CPV exert their influence by proposing legislation and regulations.²⁴ Then, every five years, the Party holds a national congress to "outline the country's overall direction and future course as well as to formalize policies."²⁵

Under Article 69 of the Constitution, the National Assembly, a 498-member committee,²⁶ is the highest state organization and possesses a wide range of constitutional and legislative powers.²⁷ "The Supreme People's Court, [the Supreme People's Procuracy], and the Government are all on equal constitutional footing just below the National Assembly,"²⁸ which has authority to monitor these institutions²⁹ as well as to appoint their heads.³⁰ The National Committee and the Standing Committee (which is empowered to act on behalf of the Assembly) are constitutionally the most important bodies in the government, and both operate on the principle of "democratic centralism."³¹ This principle limits the debates and decision-making within the bounds

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established at the central level, effectively prohibiting matters not on the agenda.³² Under this regime "all questions before the National Assembly must originate from the Standing Committee" which receives its direction from the Politburo.³³ This system "guarantees that the [CPV] can maintain firm control over the agenda [and policy setting]."³⁴

The judicial branch is similarly under heavy influence from the CPV. First off, judges are appointed and subject to a five-year term, same as the National Assembly,³⁵ and the requirements "remain to protect 'socialist legality' and 'the socialist regime' (by nodding in the direction of prevailing Party policies) and to answer to political bodies."³⁶ Phung Van Tuu, Vice-Chairman of the National Assembly, publicly advocated for CPV's leadership over judicial agencies in policy making, trial, and the assignment of cadres, and he stated that judicial independence "[did] not mean the separation from the Party's leadership."³⁷ As a result, judges are very sensitive towards the possibility of reacquiring their positions, and in particular, "'uncooperative' judges can find themselves without an appointment at the end of their five-year term."³⁸ In addition, the judges need to petition for reappointment to the Judge Selection Council, which is comprised of representatives from various government departments.³⁹ This setup incentivizes judges to "[lobby] among [members] from other organizations . . . for their...