How Closed Is Civic Space in Vietnam?

UPDATE ON DECEMBER 20, 2018: The correct decree number has been included after more information was released by the organizers of the conference mentioned in this article.

Today, December 19, 2018, the police in Hanoi disrupted an event and forced the organizers to discontinue the Third Annual Conference on the Roles of Government, Civil Society, and other Related Stakeholders in Providing and Monitoring Public Services (Third Annual Conference) which was supposed to last until tomorrow. The conference was organized by several NGOs and CSO working groups in the country, and its disruption again shows alarming signs that civic space in Vietnam is not only closed but getting more restrictive.

As a sunny state in Southeast Asia that often gets praised on many travel and food networks channels, the scores which different international indexes give Vietnam on individual freedoms, such as the classification as a “closed” society by CIVICUS, don’t seem to match up.

However, Vietnam is a country with many paradoxes and the political atmosphere more often than not has proven to be extremely repressive for civil society.

From a few sources on social media, the Hanoi authorities cited an archaic decree as their reasons to stop the above conference. It was not the often used Decree 38/2005/NĐ-CP (Decree 38) (link in Vietnamese), which requires public gatherings of more than five people to seek approval from the Provincial People’s Committee.

This time, the local authorities used a decree that was originated to regulate people’s gatherings during wartime dated back in 1957: Decree 257-TTg (link in Vietnamese). Decree 257 sought to provide the implementation guidelines for Presidential Order 101-SL/L.003 (link in Vietnamese) executed by Ho Chi Minh on May 20, 1957, on the right to freedom of association.

Ironically, while the language of both Decree 257 and Presidential Order 101-SL/L.003 stated the requirement to give 24 hours notice (including verbal notice) of gatherings which would be similar to the Third Annual Conference; neither one mandated such gatherings must be discontinued if notice was not given. More than six decades later, the authorities in Hanoi insist that the Third Annual Conference had to end.

In recent years, despite what the Constitution of 2013 says about the right to peaceful assembly, the Vietnamese authorities, however, often applied Decree 38 to regulate “public gatherings. This decree would allow law enforcement to disperse crowds and mandates the police and army to cooperate with local authorities “to ensure the public order in case of need.”

Here is the first paradox, which is about the nature of Decree 38 and Decree 257, as these are laws that were not passed by the country’s legislative body – the National Assembly. They were orders issued by the administrative branch of the government. One would think that they should be deemed unconstitutional when contradicted directly with what the current Constitution said about the right to peaceful assembly in Vietnam when it was last amended in 2013. But that is not the case.

In reality, the Constitution is often ignored completely, and Decree 38 has been the sword that the police force frequently used to cut right through people’s civil rights again and again. And now, even a decree dated back to June 14, 1957, like No. 257, could trump the current Constitution.

The second paradox is that only one week ago, on December 12, 2018, Ambassador Duong Chi Dung, the Head of Vietnam’s Permanent Mission in Geneva, cited in his speech at the UPR pre-session (an event organized by UPR-Info), that Vietnam, since the last Universal Periodic Review (UPR) cycle in 2014 had implemented 96% of all recommendations it had accepted from the member states to improve human rights conditions in the country.

13 out of the 182 recommendations Vietnam supported back in June 2014 requested the government to guarantee the people’s freedom of peaceful assembly and association. In practice, from 2014 to date, not only that Decree 38 is still being widely and arbitrarily applied in the country, but the authorities now started to enforce another decree which should have been considered obsolete under the country’s current legal framework, seeking to curtail the freedom of association further.

Back to the conference that got stopped mid-way in Hanoi today, even disregarding the constitutionality of Decree 38 and 257, another paradox was the fact that it was not taken place in “public.” The location of the event was at The Hanoi Club, a private hotel.

The definition of “public places,” like the constitutionality of Decree 38 or Decree 257 itself, was never explained or defined in a court of law. While it could arguably be correct to say that the Standing Committee of the National Assembly is entrusted with the power to “interpret the Constitution,” they have never attempted to exercise such power. The judiciary in Vietnam has not been showing interest in taking up the task either.

In the meanwhile, the Ministry of Public Security – the national police force – has taken full advantage of maneuvering Decree 38 – and now, Decree 257 – at their will, without any judicial oversight. What happened today at the Third Annual Conference in Hanoi raised more doubts about the space reserved for civil society organizations to operate freely and independently in Vietnam.