Thursday, August 11, 2011

On the Arrest and Detention of Father Nguyen Van Ly




          Over the past three decades, Father Nguyen Van Ly has been imprisoned four times altogether:

          In 1977, he was detained for four months by the Vietnamese Administration for "propaganda against the socialist regime".

          In 1983, he was sentenced by the Court to ten years in prison for "sabotage of the national unity policy".

          After September 11, in October 200l, The Vietnamese Communist Party escalated its repression and condemned him to 15 years in prison for "sabotage of the national unity policy" and "violation of the Administrative Internment Decision".


          And on March 30, 2007, he was sentenced to eight years in prison for "propaganda against the Socialist Republic of Vietnam". That is a serious crime of violation of national security with prison terms up to 12 or 20 years.  Yet, the guarantees necessary for the defense were not observed. The Vietnamese Government has adopted the inquisitorial system in which the judges act as prosecutors.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     

Pursuant to Article 58 of the Vietnamese Criminal Procedure Code, in order to keep the secrets of the state, "defendants charged with crimes against the national security could have access to legal counsel only after the investigation was closed". This law is a legal anomaly. It goes against the International Covenant on Civil and Political Rights (ICCPR) which provides that "all persons shall be equal before the courts, shall be entitled to a fair and public hearing by a competent, independent and impartial court, and shall have the right to defend themselves through legal assistance of their own choosing" (Article 14).


          By substantive law, propaganda against the regime and propaganda against the state do not constitute crimes.  Propaganda is merely the exercise of the right to freedom of opinion and freedom of expression.  Together with the freedom of association, these rights are protected by Articles 18, 19 and 22 of the ICCPR, and by Article 69 of the Vietnamese Constitution.  Therefore, the sentences against the defendant have clearly violated the national constitution and the international covenant.


          Propaganda against the regime and propaganda against the state are fictitious crimes nonexistent in the penal codes of civilized nations around the world.

          Pursuant to Article 15 of the ICCPR "no one shall be held guilty of any criminal offense on account of any act which did not constitute a criminal offense, under national or international law". [where international law means the general principles of law recognized by the community of nations].


Regarding the crime of propaganda against the regime, in the middle of the 19th century, when Karl Marx issued the Communist Manifesto calling on the proletariat around the world for an armed uprising to overthrow capitalist governments, he was not prosecuted by the Court in London for the crime of propaganda against the capitalist regime.


Following the Democratic Revolution in Eastern Europe in the 1990's, civilized nations have  thrown off  into history the so-called socialist regime.  For this reason, the Vietnamese Communist Party has changed the name of the offense, from propaganda against the regime (former Article 82) to propaganda against the state (new Article 88).


          In his indictment  Father Nguyen Van Ly was charged with the crime of propaganda against the state pursuant to Article 88 of the Penal Code.  He was held responsible for defaming the state, and for slanderous acts against the government through distorted propaganda and the making, storage and distribution of documents attacking the authorities.


          Article 88, Section 1, Item (b) also condemns as anti-state propaganda any political act of "using psychological warfare to spread confusion among the people".  This is an obsolete crime, a vestige of the Cold War.  The Communists consistently confuse the law with politics.  They have invented fictitious non-judiciary crimes, such as being reactionary, anti-revolutionary, wicked landlord, capitalist comprador, anti-party revisionist, anti-communist writer or artist etc.


 For them, politics comes first and the law is but a tool.  The Vietnam's Penal Code of 1985 confirmed this fact: "In the legal system of the Socialist Republic of  Vietnam, the criminal law is a sharp instrument to consolidate the dictatorship of the proletariat and to protect the socialist regime". With this frame of mind, they have promulgated penal codes establishing false, fictitious, coercive, and preposterous crimes, with overbroad and vague incriminating elements, such as the crimes of anti-socialist propaganda, anti-state propaganda, abusing the democratic freedoms, sabotaging the policy of national unity etc… 


          In 1982 Vietnam became a State Party of the ICCPR, and, therefore has a legal obligation to respect, adopt and enforce the provisions stipulated in the Covenant. Pursuant to Article 2 of the Covenant "each State Party to the present  Covenant undertakes to respect and to ensure to all individuals within its territory the rights recognized in the present Covenant. Where not already provided for by existing legislative measures, each State Party undertakes to adopt such laws and to give effect to the rights recognized in the present Covenant".


 For those States Parties that do not adopt such provisions in their national laws or constitutions, the articles on human rights and fundamental freedoms protected by the Covenant shall have full force and credit in national and international courts.


          Political propaganda is not a crime, even if it is propaganda against the government, the regime, or the state.  It is merely the exercise of the freedom of thought and opinion, the freedom of expression, the right to opposition, the right to participate in government, and the right to change the government through free and fair elections according to the Principle of People's Self-Determination.

           Concerning the right to freedom of peaceful assembly and association, there are no political conspiracies in countries dedicated to political freedom and free expression of ideas and information, how distasteful they may be. The only activities not protected by the ICCPR are political gatherings to incite the violent overthrow of the government by arms.


          Because individuals are not saints, society needs a government.  And because those who hold power are not saints, citizens need the right to control, oppose, sanction, and replace the government.  Without the freedom of opinion, the freedom of expression, of discussion and criticism, democracy cannot exist.  If people do not have the right to free election in order to participate in government and to replace the government, then the party in power will become dictatorial, corrupt, unjust, or incompetent.


          Therefore, political propaganda to denounce a government that is dictatorial, corrupt, unjust, or incompetent is a necessity in a multi-party democratic system.  Such propaganda is not a crime. It is a right.  In cases where this right is protected by the rule of law, independent courts do not condemn and confiscate communist publications which constitute, in essence, propaganda against the capitalist regime and state.


The court considers such activities as the exercise of the freedom of opinion, and the freedom of expression to debate doctrines in the abstract.  Only when there are organized armed movements to overthrow the government, with a beginning of execution that represents a real and present danger to the national security, will the activists be prosecuted, not for the false crime of propaganda against the state, but for rebellion.

 Together with the right to freedom of opinion and freedom of expression, the right to opposition or the resistance to oppression has been acknowledged in the Preamble of the Universal Declaration of Human Rights: "The disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind. And, it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law."

           The Declaration of The Rights of Man and Citizen of 1789 declares: "Men are born and remain free and equal in rights. The aim of every political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression. The free communication of ideas and opinions is one of the most precious of the rights of man".


          The Declaration of Independence of 1776 asserts:


"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.


"When a long train of abuses and usurpations evinces a design to reduce [the people] under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security…"


In its Joint Resolution of May 5, 1994, the Congress of the United States "urges Hanoi to release all political prisoners; to restore all basic human rights, such as freedom of speech, religion, movement, and association; to abolish the single-party system and permit the functioning of all political organizations without intimidation or harassment."


For the reasons mentioned above, should the case of Father Nguyen Van Ly be submitted to the Council for Human Rights at the United Nations, then the Working Group on Arbitrary Detention will handle the case. And at the conclusion of the investigation, The Council for Human Rights should hand out a resolution denouncing the detention of this prisoner of conscience as arbitrary.


Vietnamese Lawyers Association for People's Rights

By Nguyen Huu Thong, Esquire.

(Attorney at Law to the Saigon and Paris Courts of  Appeals,

 and to the  US Supreme Court from 1954 to present)