[UPDATE at 1pm, 20 July 2018] The Vietnamese authorities have said that Will Nguyen will be released and deported from Vietnam.
With a dismal Freedom House score of 20 out of a 100 (100 being the most free), Vietnam is often seen as an authoritarian country where one breaks the law by participating in protests. But when the Vietnamese authorities arrest people for demonstrating, it’s not actually about illegal assemblies; it’s about the government acting unconstitutionally and ignoring its own obligations and responsibilities when it comes to political and human rights.
The arrest of Will Nguyen
In a May 2018 article, Culture Trip identified “13 Ways to Get Arrested in Vietnam”, listing things to steer clear of, ranging from trafficking drugs to distributing “anti-Vietnamese” propaganda, taking photos of demonstrations, and posting about politics on social media.
This highly simplistic list was seemingly validated a month later when William Anh Nguyen was arrested in Ho Chi Minh City. Nguyen, a Vietnamese-American who contributed a personal essay to New Naratif on Vietnam’s North-South divide, had been visiting Vietnam shortly before graduating from his Masters degree in Singapore. While in the southern Vietnamese city, he joined a large demonstration against two controversial draft bills regarding on cybersecurity and the creation of special economic zones on 10 June 2018, posting photos and comments on Twitter as he went.
Ho Chi Minh City wasn’t the only place with protests; people gathered across Vietnam to oppose the highly unpopular bills. The turnout—the largest in over four decades—was a striking turnout for a country where civil liberties are often curbed.
Later in the afternoon, the authorities decided that enough was enough. The police began to break up the protest, blocking the roads and arresting protesters. As people shared developments and news on social media, photos popped up of Nguyen standing on a police vehicle with the caption: “Pics at the scene when @will_nguyen_ beaten and got arrested.”
Video footage later emerged showing Nguyen bleeding from his head and being dragged along the road by a group of men who were reportedly plainclothes police officers. Apart from an appearance on state television about a week after his arrest—an appearance that many believe to be a forced confession as he expressed “regret” for his actions—Nguyen has not been seen by the public since. He is due to go on trial on 20 July for “disturbance of public order”.
Nguyen’s predicament reinforces certain beliefs about authoritarian Vietnam: that it’s illegal to protest or post political content on social media, for instance. But this isn’t reflected in Vietnamese law.
“Demonstration”: a politically sensitive word
Strict censorship and the Vietnamese government’s reaction to protesters give the impression that Vietnamese laws don’t protect individual rights. But Article 25 of the country’s Constitution clearly states that all citizens “shall enjoy the right to freedom of opinion and speech, freedom of the press, of access to information, to assemble, form associations and hold demonstrations”, promising that the “practice of these rights shall be provided by law”. Vietnam has also ascended to the International Covenant on Civil and Political Rights (ICCPR) since 24 September 1982, and the Constitution maintains that it will conform “to the Charter of the United Nations and international treaties in which the Socialist Republic of Vietnam is a member”.
But if participating in demonstrations is a right protected by the Constitution in Vietnam, why is Nguyen being put on trial for exercising it? The answer may not lie in the commission of any illegal act, but is instead embedded in the Vietnamese government’s sophisticated, but unconstitutional, system of rights abuse, developed over the years.
Despite what the Constitution says about the right to peaceful assembly, the Vietnamese government issued Decree 38/2005/NĐ-CP (Decree 38)(link in Vietnamese) to regulate “public gatherings”, requiring public gatherings of more than five people to seek approval from the Provincial People’s Committee, allowing law enforcement to disperse crowds and mandating the police and army to cooperate with local authorities “to ensure the public order in case of need”. This ordinance was not passed by the country’s legislative body—the National Assembly—but was an order issued by the administrative branch of the government.
But if participating in demonstrations is a right protected by the Constitution in Vietnam, why is Nguyen being put on trial for exercising it?
At the same time, the word “demonstration” has become taboo. It’s a word that puts the government in a bit of a fix; while they want to suppress dissent and protests, banning demonstrations outright would contradict the words of the late revolutionary leader Ho Chi Minh when he enacted Presidential Order 31(link in Vietnamese) in September 1945, guaranteeing all people the right to assembly. As a result, the Vietnamese authorities have grown sensitive to issues related to public demonstrations and assemblies.
This sensitivity has been put on display over the past month. On 19 June 2018, President Tran Dai Quang—who is also part of the delegation of National Assembly members representing Ho Chi Minh City—met his constituents in the city. Tuoi Tre, the largest newspaper in the country, reported on its Vietnamese website that Quang had expressed his support for the National Assembly to begin a discussion on a “Law on Demonstration”—expected to enshrine the right to protest while laying out clear guidelines on what behaviour or activity is or isn’t allowed—during its next meeting. The headline triggered a dramatic response from the public, especially given the fact that the country had witnessed the largest countrywide protest since 1975 just two weekends prior.
The online article was swiftly taken down by Tuoi Tre; a move that prompted snarky comments on Facebook that even the President of Vietnam himself had been censored for daring to mention legislation related to demonstrations. Slamming the paper’s report as “untrue” and causing “severe impacts”, and highlighting a “nationally divisive” comment left by a reader on another article, the government suspended Tuoi Tre’s permit for its Vietnamese website for 90 days, and ordered that the paper pay a total fine of VND220 million (close to USD10,000).
Curbing freedom of assembly in Vietnam
Many lawyers and scholars in Vietnam find Decree 38 to be problematic and unconstitutional. In November 2011, Dr Nguyen Quang A, a prominent rights activist and a well-respected public intellectual, told(link in Vietnamese) RFI Vietnamese that “just by replacing the word ‘public gathering of a crowd’ with ‘demonstration’, then we could see right away that Decree 38 is unconstitutional, and that it directly violates the people’s right to protest as prescribed in our Constitution.”
Earlier that same year, during a three-month-long nation-wide protest against China’s actions in the South China Sea, Tran Vu Hai, an attorney in Hanoi, petitioned the Standing Committee of the National Assembly to exercise their power to “interpret the Constitution”. While Vietnam does not have a constitutional court, the Standing Committee is entrusted with the responsibility of judicial review, allowing them to interpret the “Constitution, the law, and decree-laws”.
But Trinh Huu Long, a Vietnamese jurist and democracy activist who had participated in the 2011 protests, says that “the National Assembly has yet to respond to [the] request to decide on the constitutionality of Decree 38”, adding that he believes that the Standing Committee never actually exercised their power of judicial review. With the Vietnamese Communist Party’s dominance in the National Assembly—they control close to 95% of all the seats, with no other political party in the country to oppose them—it seems as if the constitutional battle for human rights and civil liberties has come to a standstill.
But the human rights violations don’t just stop with Decree 38. Vietnam has also enacted laws, such as Article 318 of the 2015 Vietnam Penal Code, to punish those whose conduct have been deemed to be “disturbing public order”—the very offence that Nguyen has been charged with—giving the government legal grounds to prosecute people who participate in protests.
Article 318 is worded broadly, giving the authorities plenty of discretion in its application. Instead of a clear definition of what a “disturbance of public order” entails, Article 318 simply frames it as an act that “negatively impacts social safety, order, or security”.
Under Clause 1 of Article 318, the penalty is either a fine of VND5 million to VND50 million (USD250 to USD2,500), up to two years’ of community service, or three to 24 months in jail. But state media reports say that Nguyen has been charged under Clause 2—for cases with aggravating circumstances, such as inciting others to “cause disturbance”—which means he’s potentially facing a penalty of two to seven years’ imprisonment, in a country whose prison system has been reported as being rife with maltreatment and lacking in accountability.
A failure to live up to obligations
Although cloaked in the language of public order and safety, both Decree 38 and Article 318 are red herrings—they aren’t laws that protect the right to freedom of assembly, nor do they clearly stipulate legal or illegal behaviour during public demonstrations. Their existence merely diverts attention from the fact that Vietnam still has no law providing for the right to peaceful assembly as required by the Constitution.
During its second cycle of the Universal Periodic Review (UPR) before the United Nations Human Rights Council in 2014, Vietnam accepted Australia’s recommendation to “enact laws to provide for and regulate freedom of assembly and peaceful demonstration in line with ICCPR.” But the government has yet to fulfil this commitment.
Although cloaked in the language of public order and safety, both Decree 38 and Article 318 are red herrings—they aren’t laws that protect the right to freedom of assembly
Despite constitutional protection and international commitments, Vietnam regularly and routinely uses vaguely worded and overly broad legal provisions to prosecute those who exercise their human rights and freedoms, especially human rights defenders and activists. It also uses disproportionate force. In its 2018 World Report on Vietnam, international NGO Human Rights Watch reported that “police used excessive force while dispersing protesters in front of the entrance of a Hong Kong-owned textile factory in Hai Duong province” in September 2017, leaving many injured. It also reported that, in 2017, Vietnam “arrested at least 41 rights advocates and bloggers for joining protests or other events or publishing articles critical of the government.”
“Disturbing public order” is a very convenient catch-all for a government eager to suppress dissent. But without any law explicitly regulating freedom of assembly and protest, the act of participating in a demonstration can’t be said to be illegal; there simply isn’t a legal definition to prescribe what constitutes a legal or illegal protest.
What now for Will Nguyen?
Will Nguyen now finds himself in the same fix as many Vietnamese human rights defenders; six Vietnamese nationals have already been sentenced to two-and-a-half years’ imprisonment for a similar charge.
There is, however, one crucial difference: Nguyen is not a Vietnamese citizen, but an American citizen of Vietnamese descent. This allows him some, albeit limited, “privileges”: with the permission of the Vietnamese authorities, he has been allowed access to US consular officers, and the authorities have said that his family will be allowed to attend his trial.
These are luxuries withheld from many Vietnamese political prisoners, who are often held incommunicado for months—even years—before standing trial. Although all trials in Vietnam are supposed to be public, family members have had to fight for the right to be present at court hearings.
Yet Nguyen’s case has received fairly limited attention in the American media. Although the US State Department confirmed that Secretary of State Mike Pompeo had raised Nguyen’s case with his Vietnamese counterparts during a visit to Hanoi earlier this month, encouraging “a speedy resolution” to the case, Pompeo made no public mention of Nguyen during his visit.
“Secretary of State Pompeo missed a golden opportunity in Hanoi to publicly raise Will Nguyen’s case and demand his immediate release,” says Phil Robertson, Deputy Asia Director of Human Rights Watch. “Trump has become perhaps the most anti-human rights president in modern US history and activists like Will Nguyen are collateral damage in Trump’s mad dash to overturn the international order.”
It’s highly likely that the verdict in Nguyen’s case will not be a matter of law, but the outcome of a political decision. According to the 2017 US State Department human rights report: “The law provides for an independent judiciary and lay assessors, but the judiciary was vulnerable to influence by outside elements, such as senior government officials and [Communist Party of Vietnam] leadership.”
Nguyen’s family and friends have worked hard to secure his safe release, running the Free Will Nguyen campaign on social media with the hashtag #FreeWilly.
“Regardless of the outcome of the trial, Will’s family is just desperate to get him home as soon as possible,” Nguyen’s college friend Kevin Webb told NBC News.
In Singapore, Nguyen’s peers had to graduate without him last Saturday, but keep their fingers crossed for the best outcome.
“Missing Will at graduation sucks because we worked so hard and he is not here due to his detention for exercising his freedom of speech,” says his classmate Azira Aziz.
Inkar Aitkuzhina, another friend, agrees. “It was extremely sad and heartbreaking that a poster with his picture was there instead of him, but we are hoping that the trial ends well and that he is released very soon.”
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Tran Vi is a Vietnamese human rights advocate and a journalist with a background in law study. Her works focus on the promotion of human rights, democracy and the rule of law in Vietnam through independent journalism and research. Her projects include thevietnamese.org and luatkhoa.org, and she is also an anti-death penalty advocate working specifically on the issues of fair trials and wrongful convictions in Vietnam. She is available at firstname.lastname@example.org