- Trịnh Hữu Long - Phạm Đoan Trang
The recent arrest of the Basam web site founder
highlights how one penal code provision, Article 258, can be stretched by the
ruling Communist Party of Vietnam to take away anyone’s freedom at any time for
doing anything that’s not state-sanctioned.
Article 258 is entitled “Abusing democratic freedoms to
infringe upon the interests of the State, the legitimate rights and interests
of organizations and/or citizens.” On its face, Article 258 is already an
anomaly, as any attempt to criminalize the vague and ambiguous “abuse” of
freedom will, almost by definition, wipe out such freedoms.
Article 258 has been used to prosecute a wide variety of
people for allegedly “abusing” their freedom of speech or religion.
In 2011, two Hoa Hao Buddhism believers were convicted
under Article 258 and sentenced to 4 and a half years in prison for
distributing leaflets and CD exposing government oppression of their church.
In 2010, reporter Le Nguyen Huong Tra was arrested and held under Article 258 for writing about the singer
girlfriend of a police general’s son. She was not prosecuted, and was released
after the son got married to someone else.
In 2008, reporters Nguyen Van Hai and
Nguyen Viet Chien were prosecuted under Article 258 for
writing about corruption at PMU-18, where several million dollars were siphoned
off a government infrastructure project. Their case was later changed to be
based on an alleged “abuse of position.”
Just earlier this year, two bloggers were separately
convicted, sentenced, and imprisoned under Article 258 for their writings –
bloggers Truong Duy Nhat and Pham Viet Dao.
No specific acts
So what does this infamous Article 258 say? The provision
states, in full:
1. 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, shall be subject to
warning, non-custodial reform for up to three years or a prison term of between
six months and three years.
2. Committing the offense in serious circumstances, the
offenders shall be sentenced to between two and seven years of imprisonment.
The most frequently used argument by Communist Party
supporters is that it protects people’s rights from all infringements by
others. However, it is precisely that vague idea that makes the law itself an
abuse.
Normally, a crime is defined by specific acts – killing,
rape, theft, drug dealing, taking bribes, kidnapping, etc. These provisions are
aimed to protect specific interests of organizations and/or citizens in the
society. More broadly speaking, law in its essence is made to protect the
interests of every member in a society against certain specific acts.
So if specific bad acts are already banned, why is a law
created just to repeat this purpose? This suggests that Article 258 is broadly
worded so that it can be used to suppress freedom in a way the government
doesn’t want to admit.
Criminal justice theory of Vietnam states that a crime
has to be specific to an act or a failure to act. For example, Article 8 of the
Penal Code defines a crime as “an act dangerous to the society.” So, a crime
must constitute specific acts instead of just ideas or concepts.
Very vague on violations
Vagueness is a flaw that lawmakers must always avoid.
Suppose a decree requires government officials to create a good Internet
environment in Vietnam, or else they will lose their jobs. The adjective “good”
makes the decree vague and broad, and it becomes a problem because nobody can
say whether an official has or has not committed a violation and whether he or
she should be sacked.
A vague or ambiguous statute is the one that has
indefinite application to particular cases. Article 258 contains a number of
such vague words, including “abusing” and “interests of the state.” It raises
questions:
- What is “abusing”? Is it an abuse to protest against
American war in Iraq? Or against Russian war in Crimea? There are no criteria
in any law books in Vietnam that can help answer this question.
- To which extent can a citizen enjoy his/her freedom
before being accused of “abusing” it? In fact, how can freedoms be exercised
without being “abused”?
- What does it mean by “the interests of the state”? By
whom are these interests defined? Is there anything like a list of such interests
so that people can avoid infringing upon?
The text of Article 258, for sure, does not answer any of
these questions. Worse, the authority to interpret laws in Vietnam lies in the
hands of security forces and the courts, all under the Communist Party’s
absolute control. This leaves unlimited space for the police to act as they please, which leads to
yet another question:
- What is to stop the government from claiming “the
interests of the state” whenever anyone does anything the government don’t
like?
The answer is, nothing. There’s nothing to stop that
abuse.
By protesting against China, are they "abusing their democratic freedoms"?
Disagree? You’ve infringed state interests
Abuse of power is precisely what’s been happening. In
2009, three people, including Pham Doan Trang, one of the authors, were
arrested under Article 258 for planning to produce T-shirts in objection of the
bauxite mining project in the Central Highlands and China’s maritime claim to
the South China Sea.
What did these people do that was “infringing upon the
interests of the state”? What particular interest of the state was violated?
How much are the damages?
Obviously, unlike earlier times, today it is legal to
produce a T-shirt. Any supposed “abuse of democratic freedoms” must be in the
content of what’s printed. But how are these anti-China sentiments infringing
upon the interests of the Vietnamese state?
What the police told those arrested, was that the
government had decided on the appropriate relationship with China. The
T-shirts, police said, made it hard for the government to carry out that
policy.
In other words, anyone who says anything that disagrees
with government policy, will make it hard for that policy, and therefore will
be subject to prosecution under Article 258.
So it was that merely voicing disagreement with a court
verdict, for example, became the basis for prosecution under Article 258. In
2013, Dinh Nhat Uy became the first Facebook user convicted pursuant to Article
258 after launching an Internet campaign calling for his brother’s release.
Or an attempt to change burial practices and preach the
Bible. That too was called an infringement of state interests and landed Hmongs
Ly Van Dinh, Duong Van Tu, and Hoang Van Sang in prison under Article 258.
Article 258 thus became a very convenient tool to
prosecute anyone simply for disagreeing with the ruling Communist Party. The
Network of Vietnamese Bloggers have circulated a statement calling for
abolishing Article 258. Even international NGO’s have spoken out. Human Rights
Watch in October 2013 issued a statement saying “Vietnam should revoke Penal
Code Article 258… and stop prosecuting people for peacefully exercising their
civil and political rights.”
Meanwhile, those bloggers who circulated the statement
calling for abolishing Article 258 and told foreign diplomats about their
effort? Police have been calling on them and bringing them in for questioning.
