Vietnam’s All-Powerful Legal Tool to Criminalize Civil Rights: “Abusing Democratic Freedoms”

Between Feb. 22 and 25, 2023, Vietnamese authorities detained [1] four people, including two lawyers, a State journalist, and a local Facebook user, on the allegations of “abusing democratic freedoms to infringe upon the interests of the state, lawful rights, and interests of organizations and/or citizens,” which violate Article 331 of Vietnam’s 2015 Penal Code. Most of the evidence collected to authorize their arrests was found on social media platforms, mainly Facebook.

The Vietnamese government has routinely deployed criminal charges from its legal playbook to suppress and intimidate regime critics and opposition voices. The most common accusations used by Hanoi include Article 117, which forbids the “distribution of anti-State materials,” Article 318, which criminalizes those who “cause public disorder,” and most recently, Article 200, which prohibits “tax evasion” activities levied against registered civil society leaders in the country.

But among those statutes, Article 331 of the current 2015 Penal Code, formerly Article 258 in the precedent 1999 Penal Code, is particularly concerning. Legal experts and lawyers have pointed out [2] that this legal provision’s vague wording and loosely interpreted definitions make it a catch-all offense that can be used to stifle freedom of expression in Vietnam.

According to Article 331, those who “abuse the freedom of speech, freedom of the press, freedom of religion, freedom of association, and other democratic freedoms” to “infringe upon the rights and interests of other people and the State” are punishable by up to 36 months in prison. It also carries a maximum sentence of seven years if the defendant’s activities are found to inflict “a negative impact on social security, order, or safety.”

In reality, “abusing democratic freedoms” charges have mostly been used to prosecute commentators [3] who are allegedly found to “defame” government officials or State agencies on social media. At the same time, Vietnamese authorities have increasingly used this criminal code to handle cases involving libel and defamation between different civil plaintiffs, while these cases could be resolved in civil courts.

The 88 Project database [4], which documents the profiles of Vietnamese political activists, dissidents, and journalists, shows that 63 people have been arrested using Article 331 of the 2015 Penal Code, while six others were charged with the previous Article 258.

Unlike other politically motivated charges such as “distributing anti-State propaganda,” “subversion,” or “disrupting security,” which have often been levelled against political dissidents, Article 331 is used to target civil communities and individuals by criminalizing slander, libel, and defamation involving civil parties. Evidence collected by Vietnam’s investigation authorities to prosecute dissidents mostly consists of postings and live streamings published on social networking sites.

According to The 88 Project database, those convicted of “abusing democratic freedoms” in Vietnam include independent and State journalists, [5] religious adherents, social media users and influencers, activists, scholars, and a former police officer.

In July 2022, six practitioners of Tinh That Bong Lai, [6] a local Buddhist temple, received more than 23 years in prison for allegedly defaming a monk from the government-controlled Vietnam Buddhist Church. In the latest development, three defense lawyers for the Tinh That Bong Lai members, Dang Dinh Manh, Ngo Thi Hoang Anh, and Dao Kim Lan, are being investigated by the Long An Provincial Security Investigation Office for their potential violation of Article 331. The alleged evidence comprises videos, postings, and live streams published by these lawyers on Facebook.

Earlier, in June 2022, Le Chi Thanh, [7] a former police captain, received a three-year sentence after he exposed wrongdoings within the public security forces and accused his superior of corruption in Youtube live streams. Meanwhile, Vietnamese scholar Nguyen Son Lo, [8] who authored many books offering advice to Vietnam’s leaders on politics, economics, and culture, was arrested last February under Article 331.

Although this legal provision is redundant and arbitrary, it is argued [9] by lawyers and legal experts to be an essential tool to protect the exclusive power of the Vietnamese government and the Communist regime. A similar catch-all offense, “picking quarrels and provoking trouble,” [10] has also been frequently applied by Chinese authorities against activists who criticize the government or publish information about human rights or politics on social media.

During the COVID-19 pandemic, Vietnam fined, arrested and prosecuted many online commentators for disseminating content on social media deemed to be “false” and “distorted.” Many Vietnamese citizens used social networks to express discontent with the government’s abusive antivirus policies. In June 2022, a Ho Chi Minh City resident was imprisoned [11] for one and a half years after his Facebook posting that described a man who killed himself because he was frustrated with Vietnam’s zero-COVID policy. This was declared to be fabricated.

Local critics and international human rights groups have condemned the government’s application of Article 331 on libel and defamation cases. They argue that it violates the principles of freedom of speech and press as enshrined in the Vietnamese Constitution and the International Covenant on Civil and Political Rights, which Vietnam ratified in 1982.

On January 1, 2022, 86 individuals and civil society organizations in Vietnam and overseas introduced [12] a petition calling for the abolition and amendment of three controversial articles in Vietnam’s 2015 Penal Code, including Article 331. The petition claimed that “abusing democratic freedoms” is the “most bizarre” legal provision, intentionally enacted to trample on basic human rights guaranteed in the country’s Constitution and international covenants to which Vietnam is a signatory.

Multiple rights advocates, including Human Rights Watch, Amnesty International, Article 19, and the International Commission of Jurists, in a joint statement [13] released in October 2022, requested Vietnam to put an end to rights-abusing laws such as Article 117 and Article 331. The statement also urged the government to drop all charges against human rights defenders, activists, and journalists arbitrarily detained and charged under these laws.

Footnotes:

[1] The Vietnamese. Magazine, (February 27, 2023). Vietnam Abstains from UN General Assembly Demanding the Withdrawal of Russian Troops from Ukraine. The Vietnamese Magazine. https://www.thevietnamese.org/2023/02/vietnam-abstains-from-un-general-assembly-demanding-the-withdrawal-of-russian-troops-from-ukraine/

[2] Trinh, Huu Long, (May 6, 2022). Article 331 Of The Vietnam Penal Code Is Completely Redundant. The Vietnamese Magazine. https://www.thevietnamese.org/2022/05/article-331-of-the-vietnam-penal-code-is-completely-redundant/

[3] Nam, N. (September 15, 2022). Lãnh án tù vì lợi dụng các quyền tự do dân chủ. Báo Pháp Luật TP. Hồ Chí Minh. https://plo.vn/lanh-an-tu-vi-loi-dung-cac-quyen-tu-do-dan-chu-post698709.html

[4] Database. (April 1, 2021). The 88 Project. https://the88project.org/database/

[5] The Vietnamese Magazine,  (2022b, January 27). Vietnam: Appellate Court Upholds Convictions of Bao Sach’s Journalists. The Vietnamese Magazine. https://www.thevietnamese.org/2022/01/vietnam-appellate-court-upholds-convictions-of-bao-sachs-journalists/

[6] Nguyen, Jason (July 23, 2022). Tinh That Bong Lai Practitioners Sentenced To Combined More Than 23 Years In Prison. The Vietnamese Magazine. https://www.thevietnamese.org/2022/07/tinh-that-bong-lai-practitioners-sentenced-to-combined-more-than-23-years-in-prison/

[7] The Reporter (June 23, 2022). Former Police Captain Receives 3 Years In Prison Under Article 331. The Vietnamese Magazine. https://www.thevietnamese.org/2022/06/former-police-captain-receives-3-years-in-prison-under-article-331/

[8] The Vietnamese Magazine, (February 13, 2023). CIVICUS Report: Vietnam Continues with Suppression of Journalists and Political Dissidents Despite Recent Election to UN Human Rights Council. The Vietnamese Magazine. https://www.thevietnamese.org/2023/02/vietnam-briefing-civicus-report-vietnam-continues-with-suppression-of-journalists-and-political-dissidents-despite-recent-election-to-un-human-rights-council/

[9] Ibid., [2]

[10] What is the Chinese crime of ‘picking quarrels and provoking trouble’? ( August 25, 2021). South China Morning Post. https://www.scmp.com/news/china/politics/article/3146188/picking-quarrels-and-provoking-trouble-how-chinas-catch-all

[11] The Vietnamese Magazine (, June 27, 2022). Vietnam Briefing: Vietnam Continues Using Article 331 To Suppress Human Rights. The Vietnamese Magazine. https://www.thevietnamese.org/2022/06/vietnam-briefing-continues-using-article-331-to-suppress-human-rights/

[12] The Vietnamese Magazine (January 5, 2022). The 117 Petition: Individuals And Civil Organizations Call For The Abolition Of Vietnam’s Controversial Laws. The Vietnamese Magazine. https://www.thevietnamese.org/2022/01/the-117-petition-individuals-and-civil-organizations-call-for-the-abolition-of-vietnams-controversial-laws/

[13] Vietnam: UN Human Rights Council Candidacy Demands Progress on Human Rights. (2022, October 10). Human Rights Watch. https://www.hrw.org/news/2022/10/10/vietnam-un-human-rights-council-candidacy-demands-progress-human-rights