How State Impunity Operates
Phạm Đoan Trang
23
November, 2013
Blogging
has replaced journalism as the most dangerous job in Vietnam in the Internet
era.
“It’s dangerous indeed. But it’s not a job, for we
bloggers have never been paid for what we write,” said “J.”, a young
Hanoi-based blogger. An administrator of a large online forum specializing in
social and political issues, J. is more than aware of the risks bloggers like
him are facing everyday: hackers, intimidating posts of state-sponsored cyber
troops, and, worst of all, police discovery of their identities as “anti-state”
bloggers.
“Bloggers are not paid as journalists are,” said J.,
“but we are doing the same thing mainstream media have been doing, or more
precisely, have failed to do: exposing truths to the public that the government
does not want them to know. In doing this, we face police harassment, detention
and imprisonment.”
J. was not exaggerating. According to September 2013
estimate by the International Society for Human Rights (ISHR), at least 263
Vietnamese citizens, including bloggers, have been jailed since 2005 under
charges of “infringing upon national security” and “infringing upon
administrative management order.”
Of these hundreds of detainees, 68 were prosecuted
under Article 88 of the Vietnamese Criminal Code (VCC) for “conducting
propaganda against the state”, and 40 under Article 258, “abusing democratic
freedoms to infringe upon the interests of the state.”
Behind these numbers are individual cases of people
who dared to speak out. In fact, political bloggers in Vietnam have become
familiar personalities in mainstream media for reporting on the arrest or trial
of a previously obscure person but now charged with Article 88 or 258. These
laws have proven to be effective scare tools used by the government to silence
voices of dissent from the public.
The “handcuffs”
Bloggers sarcastically refer to Article 88 as the
“handcuffs”, since the number 8 visually resembles these restraining devices
used by law enforcement. Specifically, this law stipulates that those who make,
store or disseminate information, including “documents and/or cultural
products”, against the state shall be sentenced to between three and 12 years
of imprisonment.
However, the law falls short of providing a clear
description of contents that could be deemed “against the state”. Furthermore,
the authority to interpret laws in Vietnam lies in a variety of entities
ranging from the security forces, investigating body, to the procuratorates,
the courts, or even ministries, although under Vietnamese laws, only the
Standing Committee of the National Assembly holds this authority.
Before Article 88, there was Article 82 of the 1985
Vietnam Criminal Code, which was as repressive as any Soviet-styled penal law.
Article 82 aimed to punish “propaganda against socialism”, giving the same
lengthy sentences of three to 12 years of imprisonment. There are no publicly
available statistics on the number of detentions and charges under Article 82.
In 1999, a new penal code was issued which
transformed Article 82 into Article 88, with the word “socialism” replaced by
“the state”. The article now uses less abstract term but not necessarily less
vague and broad.
Far from being restricted to cases of clearly
subversive activities, Article 88 has been used to silence voices seeking a
cleaner, more accountable government – something that, if the government would
heed, could actually strengthen it.
Interpreting “the state”
One of the well known prisoners imprisoned under
Article 88 is Cu Huy Ha Vu, a legal scholar, and son of a close ally of Vietnam
founding father Ho Chi Minh. In 2009, Cu Huy Ha Vu filed a lawsuit against PM
Nguyen Tan Dung, for allegedly starting a massive mining project that could be
environmentally disastrous. In other countries, such a lawsuit may seem normal,
but it was considered a watershed event in Vietnamese history.
Vu also contributed articles and gave interviews to
overseas media agencies in which he straightforwardly criticized the ruling
Communist Party and called for a multiparty democracy in Vietnam. In an
interview with the Radio Free Asia, Vu said, “Today in Vietnam… a lot of state
budget has been spent arbitrarily even on nefarious activities… In order to
punish those corrupt gangs, I insist that the only way is to develop a
multiparty system in Vietnam.”
In one of his articles published by the Vietnam
Bauxite blog, Vu advocated the separation of powers, criticizing what he termed
“the government, the court, and the national assembly uniting against the
people.”
In 2010 Cu Huy Ha Vu was arrested and charged under
Article 88. He was subsequently put on trial in a court composed of judges who
were Vietnam Communist Party members, reinforcing his claim that under such a
system the judiciary would be unable to be impartial. In 2011, Vu was given a
seven-year imprisonment sentence.
Cu Huy Ha Vu’s trial loudly sent the message that,
under the Vietnamese legal system, the Communist Party and its high-ranking
members like the Prime Minister are untouchable, and immune from legal
challenge. More importantly perhaps, the conviction made it clear that any such
attempt is to be legally interpreted as “propaganda against the state”.
This case may be something already expected from a
one-party state, and bloggers may already know that risk. However, as Nguyen
Phuong Uyen, a student from the southern city of Long An, found out, even
speaking for Vietnam and protesting to the aggressive acts of another country,
specifically China, in the Southeast Asian sea dispute could put her in jail.
She was arrested on 14 October 2012, just two days after her 20th birthday, and
charged under Article 88. According to the indictment, Uyen and her companion,
Dinh Nguyen Kha, their “crime” was producing pamphlets, slogans and paper flags
that carried the following messages:
“Long An’s patriot youth struggle for freedom and
human rights;”
“Patriotic youth are determined to eliminate
communism and free the nation;” and
“Long An is courageous and resolute in fighting
communists for a free life.”
In addition, Uyen made a finger-writing in blood of
the slogan, “China, get off the East Sea.” The indictment described this slogan
as “not good content about China.”
It may well be argued that these slogans were not in
opposition to “the people’s administration” but instead targeted an ideology.
However, how a criticism against China could be interpreted as being against
the Vietnamese state is simply hard to figure out.
In May 2013, the trial court imposed prison
sentences of six years for Nguyen Phuong Uyen and eight for Dinh Nguyen Kha.
These were reduced on appeal to three years suspended for Uyen and four years
of imprisonment for Kha. Both the trial and the appeal were closed to their
friends and family members; even the parents of Uyen and of Kha were not
allowed in.
Conditional rights
Compared to “the handcuffs”, Article 258 of the 1999
Criminal Code seems less strict with sanctions including warnings and
non-custodial reform for up to three years. In serious circumstances, offenders
may be sentenced to between two and seven years of imprisonment.
The darker side is that Article 258 is more vague
and broad worded, can be used against as many citizens as the police-dominated
state wants. Offenders of Article 258 include “those who abuse the rights to
freedom of speech, freedom of press, freedom of belief, religion, assembly,
association and other democratic freedoms to infringe upon the interests of the
State, the legitimate rights and interests of organizations and/or citizens.”
Article 258 begins with a very specific list of the
rights that cannot be “abused”. On the other hand, it also leaves an open
interpretation for “other democratic freedoms” not initially listed. More
seriously, it does not define what constitutes an “abuse” or “interests of the
state” that cannot be infringed upon. In effect, Article 258 covers a broader
range of acts than Article 88, which is limited only to acts which may be
deemed as “propaganda”.
Following the boom of blogs and social media in
Vietnam, there has been an increase in arrests and charges under Article 258.
Several incidents in 2013 demonstrate the escalation
in the use of Article 258 in Vietnam as the country campaigned for membership
in 2014-2016 in the United Nations Human Rights Council:
- 5 May: two bloggers were detained right after
distributing copies of the Universal Declaration on Human Rights. Police
accused them of abusing democratic freedoms to infringe upon the interests of
the state.
- Between 26 May and 15 June: three bloggers were
arrested, two of them were well-known bloggers and journalists Truong Duy Nhat
and Pham Viet Dao. The third blogger, Dinh Nhat Uy, is the elder brother of
Dinh Nguyen Kha, an Article 88 detainee. The Dinhs thus gained the sad
distinction of having two sons imprisoned for alleged violations of “national
security” and “order”.
- In October, police again used Article 258 to
arrest two persons, Thao Quan Mua and Hoang Van Sang, in the northern province
of Tuyen Quang for initiating a class action suit against authorities for
suppressing Duong Van Minh, a Christian sect founded in 1989. Earlier in June,
police demolished unauthorized religious shrines of the said sect on orders of
the government Committee on Religious Affairs. Under Vietnamese Law, religious organizations
must register before their can operate. This case has therefore seen the use of
Article 258 against freedom of religious belief.
Broad discretion
The indictment of Dinh Nhat Uy was leaked to the
online community in October and incited a public outcry for its childish
arguments, including:
“In around 2010, Dinh Nhat Uy had his friend created
a Facebook account whose nickname is Dinh Nhat Uy. Initially Uy only used it to
send messages to friends. But as from around November 2012, after his younger
brother Dinh Nguyen Kha was charged with conducting propaganda against the
State of the Socialist Republic of Vietnam, this Facebook account was regularly
used by Uy to post news, to share images and links, and to send messages...”
“(Using his Facebook page) Uy posted bad and false
information about the State, organizations and individuals… Those images and
articles were seen and read by many people. Many shared, pressed “like”, and
gave comments, of which many comments smeared and insulted the State,
organizations and citizens… On January 2, 2013, on posting the link into the
article titled “Exposing the true face of the human right award Hellman/Hammett”
published on trandaiquang.net [Tran Dai Quang
is the name of the Vietnamese Minister of Public Security; trandaiquang.net
appears to be a pro-government website], Uy commented, “What a lie. You [the
author] can only cheat the fools.” Below this post of his, there were 18 people
pressing “like” and 7 people giving comments, many of those comments were
insulting.”
By imprisoning Uy for four months and then imposing
a suspended 15 month sentence upon him, the state, in fact, targeted not only
one individual but sent a warning to all social media users that they are
potential offenders of Article 258. The charge against Dinh Nhat Uy did not
specify which right he allegedly “abused”, although it is apparently the right
to free expression.
In the face of such vague and broad restrictions,
one may well ask: what are Vietnamese citizens allowed to do or speak about
that will not be interpreted as an “abuse” of their rights? What are the
boundaries of the “interest of the state”?
Answers to these questions will remain unknown
because Article 258 gives authorities an almost unfettered discretion on using
the law against the exercise of a broad range civil rights. Such use can only
be limited by the state’s justifications on how these were “abused” or
infringed upon its ‘interests”.
Vietnamese bloggers, including “J.”, understand that
these limits will grow tighter if they remain silent. Following these
restrictions may mean that they will not be jailed, but it does not mean that
they remain free.
Phạm
Đoan Trang is a journalist and blogger based in Hanoi. Her bilingual reports on
human rights in Vietnam can be found on her blog, www.phamdoantrang.com.
This
article was part of the Impunity Report 2013, published by the Southeast Asian
Press Alliance.
----------------------------------------
Tuyển tập này bao gồm 6 báo cáo, đều được soạn thảo
bằng tiếng Anh:
1.
Stakeholder submission for the UPR of Vietnam 2014. Đây là báo cáo chính trong tuyển tập, do VOICE, Dân Làm Báo, Truyền
thông Chúa Cứu thế, Con Đường Việt Nam, và Freedom House, phối hợp thực hiện
vào tháng 5/2013. Nó cũng là phần “báo cáo của các bên liên quan” (stakeholder
submission), một trong các nguồn tài liệu chính để Nhóm Làm Việc về UPR của
Liên Hợp Quốc sử dụng làm căn cứ đánh giá tình hình nhân quyền ở Việt Nam.
2.
Vietnam 2013 Human Rights Report (Báo cáo Nhân
quyền Việt Nam 2013), do Dân Làm Báo thực hiện.
3.
Human Rights Day in Vietnam (Báo cáo về
những vụ đàn áp blogger nhân ngày Nhân quyền Quốc tế), do Mạng Lưới Blogger
Việt Nam thực hiện.
4.
Freedom of Religion and Artistic Expression (Về tự do tôn giáo và quyền tự do sáng tác), do VOICE thực hiện.
5.
How State Impunity Operates (Lợi dụng luật
pháp để chống tự do ngôn luận), bài viết của nhà báo Đoan Trang.
6.
Chronology of Blogging Movement in Vietnam (Lịch sử blog Việt).
Dân Làm Báo
sẽ đăng tải tất cả các báo cáo trong tuyển tập này, để bạn đọc tham khảo.
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