One may say that many things are faulty in Vietnam’s Penal Code, but Article 331 particularly stands out.
It is entirely redundant and unnecessary.
It reads as follows: [1]
At first glance, this seems sensible; anyone who infringes upon the interests of others should be punished. Yet, the problems of Article 331 are more profound than its legal text implies.
To uncover its redundancy, we can first briefly discuss the law.
Law, generally, is designed to do two things: regulate what citizens cannot do and outline what the government can do.
Modern law is built on the assumption 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,” as the American Declaration of Independence declared in 1776, and as in Vietnam’s Proclamation of Independence in 1945.
This assumption comes from the Natural Law Theory developed by the Enlightenment philosophers in Europe during the 17th-18th centuries. [2] This theory states that as soon as human beings are born, they automatically have the right to freedom.
Since freedom is ingrained in every person, it logically follows that they may do whatever they want and even abuse this right to harm others. But if everyone had absolute freedom, the result would be a chaotic society. Hence, the Enlightenment philosophers argued that the state was created to establish social order by enforcing a social contract. [3] The state will then enact laws to limit the freedom of each individual, impose prohibitions, and turn freedom into relative rights.
For instance, despite having the right to freedom of opinion and expression, this should be limited, and a person will be punished if he or she commits acts such as character defamation or the spreading of false rumors to incite violence.
Another example would be the right to protest. Anyone can express one’s discontent in public through mass gatherings and rallies, but in many countries, they must first notify and register with the authorities beforehand and only demonstrate in designated areas.
Alternatively, everyone has the right to own property, but their possessions may be requisitioned by the state for security and defense purposes when it has a sensible reason, and the owners are given adequate compensation.
Many corporations acknowledge that the use of their industrial plants may also be limited if they may have some environmental impacts.
Likewise, the state has the power to search your land and home when investigating a crime to look for evidence if the court permits.
If a person violates these prohibitions or fails to comply with the above limitations, he or she may be subject to punishments.
By principle, all government restrictions on human rights and interventions against individual freedoms must be tempered by necessity and justified by adequate reasoning. [4]
This is the conceptual approach in political philosophy known as the Minimal State.
We also have what is known as the Welfare State wherein the government plays a more significant role in the affairs of its citizens. In this model, the state intervenes more in society, restricts more rights, imposes higher taxes, and provides additional social services. In a Welfare State, the law prevents and punishes harmful actions and protects people’s freedom. It is also in place to distribute wealth and provide added welfare. [5]
Nevertheless, it hardly matters if a country adheres to the Minimal State or the Welfare State model, the law is still based on the principle previously stated in this article: everyone automatically has the right to freedom by birth. And the law should limit those freedoms while preventing or punishing acts that infringe upon the interests and rights of others or society.
This is also the content of Article 331 of the Vietnamese Penal Code.
Article 331 merely reiterates the original and fundamental function of a whole legal system. It does not deal with particular social problems or provide specific solutions to any distinct issues but regurgitates the general philosophy behind all laws.
This is also why many people have said that Article 331 is ambiguous and vague. How can it be precise when it does not address any particular problem but is merely a rehashed declaration of legislative philosophy?
Article 331 should not have been made; its existence is entirely redundant and unnecessary.
Why Did Vietnam Enact Article 331?
The Vietnamese government and the Communist Party needed a tool to protect their power from outside threats, such as criticism, protests, or independent associations. Using the vague wording of Article 331, they classified these actions as national security concerns.
However, these national security concerns are often political in nature. Since the Vietnamese Communist Party fought to eliminate colonialism, it did not want to be seen as an evil ruler similar to the French when dealing with political cases. They needed to create a less political provision that did not blatantly mention national security interests. Hence, the crime of “abusing democratic freedoms” was codified under Article 331.
The Party and State also needed a broad enough law to interpret things however they wanted. Hence, they crafted such a law in Article 331. The Vietnamese government can theoretically apply this penal code to any action it considers a threat to its rule.
For instance, if the government wants to punish an individual for allegedly making up a story that defames another person, it will apply Article 331. And with that it, therefore, nullifies the crime of slander even though Vietnam has penal codes that deal with defamation.
Or if the government wanted to punish protesters gathering outside of designated areas, it could use Article 331. When it did, it would not apply the less serious offense of disrupting public order for the protesters and sentencing them to more years in prison.
By bringing all these acts and concepts together under the umbrella of a single offense, the Vietnamese state has effectively created a penal article with no limits. In this way, the application of the law falls under the discretion of the authorities.
The law, which is crafted with the philosophy of protecting the people’s liberties and limiting the state’s power, must clearly define what the state and its citizens can and cannot do. However, Vietnamese law, in general, and Article 331, in particular, have been turned into weapons of the State.
Vietnam then can arbitrarily use either Article 331, Article 117 – the crime of conducting propaganda against the state – or Article 156 – the crime of defamation – to prosecute those who criticize the state, Party officials, or those with close ties to the government.
Thus, while Article 331 may seem redundant when viewed critically because there are already other penal codes to penalize the same offenses, its actual function lies in its utility for the Vietnamese State. In a country where the government officials and their cronies can use the law to safeguard their position of power over the masses, this core philosophy serves as the foundation for a dictatorial and authoritarian regime.
This article was first published in Luat Khoa Magazine on March 29, 2022. The English translation is done by Lee Nguyen.
Reference
1. Thuvienphapluat.vn. (2017). Văn bản hợp nhất 01/VBHN-VPQH 2017 Bộ luật Hình sự. Thuvienphapluat.vn. https://thuvienphapluat.vn/van-ban/Bo-may-hanh-chinh/Van-ban-hop-nhat-01-VBHN-VPQH-2017-Bo-luat-Hinh-su-363655.aspx
2. Natural law | Definition, Theory, Ethics, Examples, & Facts | Britannica. (2022). In Encyclopædia Britannica. https://www.britannica.com/topic/natural-law
3. Social contract | Definition, Examples, Hobbes, Locke, & Rousseau | Britannica. (2022). In Encyclopædia Britannica. https://www.britannica.com/topic/social-contract
4. 4 Permissible limitations of the ICCPR right to freedom of expression | Australian Human Rights Commission. (2013). Humanrights.gov.au. https://humanrights.gov.au/our-work/4-permissible-limitations-iccpr-right-freedom-expression
5. Neoliberalism | Definition, Ideology, & Examples | Britannica. (2022). In Encyclopædia Britannica. https://www.britannica.com/topic/neoliberalism
