IV. TOOLS OF CONTROL
The doi moi era has seen two major legislative achievements, the 1985 Criminal Code, amended in 1992, and the 1989 Criminal Procedure Code. Since the Eighth Party Congress in June 1996, however, new regulations have been issued that codify existing tools of social and political control but do not conform with the Criminal Code.
One such tool of control is administrative detention. This is a familiar means of social and political control in Vietnam. It was widely used by the French colonial authorities in the 1930s to arrest those suspected of Communist activities. The Communist authorities have long employed very similar means to detain those suspected of ``counter-revolutionary" offenses, most forcibly with the detention of hundreds of thousands of South Vietnamese in reeducation camps after April 1975. With the introduction of the Administrative Detention Directive (31/CP) signed by Prime Minister Vo Van Kiet on April 14, 1997, the Vietnamese government is now reinforcing this tool of control.
Directive 31/CP authorizes village-level People's Committee and Public Security officials to detain individuals without trial for between six months and two years. Article 2 of Directive 31/CP states that "administrative detention applies to those individuals considered to have violated the laws, infringing on the national security, as defined in Chapter 1 of the Criminal Code, but [whose violation] is not serious enough to be prosecuted criminally." Because there is no criminal prosecution, the detainee is not brought to trial and therefore has no opportunity for legal defense. In the Criminal Code, however, there is no provision for national security offenses to be considered as anything less than a criminal offense. Article 2 of the Criminal Code states that "only those persons committing an offense defined in criminal law shall be deemed to be criminally liable. Penalties shall be decided by the courts." Detention of individuals "infringing in the national security" without criminal prosecution is therefore illegal under both Vietnamese and international law. Directive 31 C/P violates not only the Criminal Code but also the 1992 Vietnamese constitution, which states in Article 72 that "no citizens shall be considered guilty and liable to punishment until a verdict has been reached by the Court and come into effect."
While legal reform is progressing in other areas, administrative detention directive 31/CP represents a major step backwards. In the Criminal Code, Chapter 1 on national security is so wide-ranging and vaguely worded as to allowprosecution of virtually any peaceful government critic, and it has repeatedly been applied in this manner.19 It is an open door to detaining any perceived government critics or individuals considered to be, in official parlance, a "bad element" or "hostile force for peaceful evolution." No further definition of these categories has ever been made public by either the party or the government. In regard to rural unrest, the directive allows local authorities to detain precisely those people who have protested against their corruption and abuses of power. Under Directive 31/CP, the provincial People's Committee chairman decides whether the detainee is to be held under surveillance at his or her place of residence or in an alternative detention facility. Village-level People's Committee cadres are responsible for keeping monitoring files on the detainee, who is encouraged to earn "credit points" by reporting on other people suspected of violating the law. The detainee is "placed under the control and education of the local government and people." Restricted access to information makes it impossible to gauge how many protestors are currently being administratively detained in Thai Binh and Dong Nai without having been brought to trial.
Another major tool for social control is restriction of the press. Article 69 of the Vietnamese constitution claims that "citizens are entitled to freedom of speech and freedom of the press." In reality all domestic media are state-controlled and subject to rigorous censorship. Vietnamese and foreign journalists claim that press controls have become even tighter since the Eighth Party Congress in June 1996. The domestic media currently have no freedom to develop into independent social, political or economic watchdogs. For example, although reporting of corruption has been widely encouraged by the Vietnamese leadership, the arrest on October 8, 1997 of Nguyen Hoanh Linh, editor of the business newspaper Doanh Nghiep, on charges of "revealing state secrets" after reporting on high-level corruption within the General Department of Customs, indicates that only politically expedient exposure of abuses is tolerated.20 As regards rural unrest, the trouble spots of Thai Binh and Dong Nai remain off-limits to foreign journalists, and domestic press coverage has been centrally controlled as described above, making it impossible to build up an objective picture of events.
A government directive adopted on September 28, 1997 legally obliges Vietnamese journalists to obtain approval from the Ministry of Culture and Information before passing any information to foreign journalists. The directive potentially puts in jeopardy any Vietnamese journalist who enters into even informal contact with a foreign journalist. It constitutes a serious infringement on the right to freedom of expression and of the press, and demonstrates a tightening of control over information flows.
Foreign journalists are directly monitored by the Foreign Ministry Press Department, while their local press assistants are obliged to report regularly on their activities to the Ministry of Interior Press Center. Instances of harassment and even intimidation of press assistants have increased over the past year, particularly if the foreign journalist is endeavoring to cover any issue deemed sensitive by the authorities, such as civil unrest.
These restrictions of the press violate Article 69 of the Vietnamese constitution as cited above and Article 19 of the ICCPR, which states: "everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds regardless of frontiers." For all that Party Secretary Do Muoi claimed in the aftermath of the Thai Binh unrest that the people should be able to express their concerns through the mass media, the domestic press offers no opportunity for debate or dialogue. It remains a channel for top-down communication, and these new directives smack of more, not less, state control.
No Right to Association
There is no legal right to independent association in Vietnam. The 1957 Law on National Associations allows for mass organizations, such as the Youth Union, the Farmers' Union, and the Women's Union, which fall under the umbrella of the Party's Fatherland Front. Doi moi reforms have given rise to new economic interest groups, for example private entrepreneurs, employers, and independent farmers, who fall outside the existing structure of mass organizations and therefore have no legal forum to represent their interests to the political center.
To address this need for new fora, the Fatherland Front, the government and the Party have been drafting new legislation on associations for ratification by the National Assembly. According to advisors, there have been over ten drafts, but no agreement has been reached among the three parties. This tortuous process indicates that the legalizing of associations is perceived as a potential political threat. In stark contrast, the directives on administrative detention and press control did not require any protracted debate before ratification.
Vietnam has no law allowing autonomous domestic nongovernmental organizations. The government claims to have 450 domestic nongovernmental organizations currently. Decree 32 passed in 1992 established procedures for setting up Vietnamese so-called "nongovernmental organizations", but these must be linked to a state organization and are not politically independent. Until Vietnam establishes the right to independent association, interest groups which are emerging out of the country's dynamic changes will remain disenfranchised. Without the right to either association or free expression through the media, civil protest is the only effective option for citizens to make their voices heard at central as well as local level.
19 Individual cases of detention for crimes against the national security in Vietnam have been cited in previous Human Rights Watch/Asia reports: "Vietnam: The Suppression of the Unified Buddhist Church," March 1995; "Vietnam: Human Rights in a Season of Transition, Law and Dissent in the Socialist Republic of Vietnam," August 1995; "Behind Vietnam's Open Door: A Climate of Internal Repression," November 1997. 20 Human Rights Watch/Asia, "Behind Vietnam's Open Door: A Climate of Internal Repression," November 11, 1997.