Human Rights Committee examines the situation of civil and political rights in Viet Nam

Human Rights Committee

12 March 2019

THE Human Rights Committee today concluded its review of the third periodic report of Viet Nam on measures taken to implement the International Covenant on Civil and Political Rights.

Presenting the report, Nguyen Khanh Ngoc, Vice-Minister of Justice of Viet Nam, said that,as a nation that had gone through many wars, Viet Nam understood well the true value of peace, freedom, self-determination, equality, justice, and human rights.  That was why the country worked hard to promote and protect human rights in its national development process, and was making improvements not only in economic area, but in law, justice, non-discrimination, governance, and the promotion and protection of human rights and freedoms.  The Ministry of Justice was a lead coordinating agency for the implementation of the Covenant and for ensuring that it was reflected in the legal system.  All the Covenant provisions and the last 23 concluding observations by the Committee were being carefully studied, examined, and used in the law making process.  A new Constitution, adopted in 2013, contained a number of important provisions on the promotion and protection of human rights and freedoms, and since then, over 100 laws had been reformed or enacted, including many related to human rights.  Viet Nam would continue to work hard towards achieving its goal of having prosperous people, a powerful nation, and a democratic, just and civilized society, and in that sense, the Committee Experts should look at the overall positive picture, the strong development trends, and acknowledge both the clear commitments and the challenges to the promotion and protection of human rights and freedoms in Viet Nam.

Committee Experts began the discussion acknowledging the steps Viet Nam had taken to comply with its obligations under the Covenant and welcomed in particular the adoption in the Constitution of a chapter dedicated to human rights.  However, the Constitution limited the scope of international human rights instruments for issues of national security or social order, which effectively restricted the rights of human rights defenders, minority groups, and all those whose political views opposed the Communist Party of Viet Nam.  The concept of national security it contained was too broad and could be invoked to limit freedom of expression, freedom of religion, and other freedoms, they remarked, and asked about the safeguards to ensure that the national security-related laws and regulations were not being arbitrarily and disproportionately used, and that all permitted restrictions on the rights under the Covenant were strictly necessary and proportional.  The use of the death penalty was a matter of great concern as Viet Nam ranked third, or even second, in the number of death penalties in the world.  They discussed the independence of the judiciary given that judges were appointed by the Communist Party based on their loyalty to the fatherland; the new law on religion which increased the Government’s control over the religious communities; the 2016 press law which prohibited reporting on politically sensitive issues and the criticism of the State; and the attacks against human rights defenders and campaigners.

In his concluding remarks, Mr.Nguyen thanked the Committee for the open dialogue in which the delegation of Viet Nam tried to show the great efforts the country had made to improve human rights. 

Ahmed Amin Fathalla, Committee Chairperson, in his concluding remarks, recalled that the Covenant should be applied in all countries, irrespective of their legal order and urged Viet Nam to continue to address the issues such as children’s rights, judicial independence, the death penalty, and the allegations of torture in detention.

The delegation of Viet Nam consisted of the representatives of the Ministry of Justice, Ministry of Foreign Affairs, Ministry of Labour, War Invalids and Social Affairs, Ministry of Information and Communication, Ministry of Public Security, Ethnic Minority Committee, Religion Affairs Committee, Supreme People’s Procuracy, Supreme People’s Court, Internal Affairs Department, and the representatives of the Permanent Mission of Viet Nam to the United Nations Office at Geneva.

The Committee will issue the concluding observations on the report of Viet Nam at the end of its one hundred and twenty-fifth session on 29 March.  Those, and other documents relating to the Committee’s work, including reports submitted by States parties, can be found on the session’s webpage.

The webcast of the Committee’s public meetings can be accessed at http://wbtv.un.org/.

The Committee will next meet in public at 3 p.m. today, 12 March, to examine the implementation of the International Covenant on Civil and Political Rights in Eritrea, in the absence of a report and with the delegation present.

Report

The Committee has before it the third periodic report of Viet Nam (CCPR/C/VNM/3), as well as its reply to the list of issues (CCPR/C/VNM/Q/3/Add.1).

Presentation of the Report

NGUYEN KHANH NGOC, Vice-Minister of Justice of Viet Nam, said in the introduction of the report that Viet Nam, a nation that had gone through many wars the consequences of which had not entirely been overcome, understood well the true value of the peace, freedoms, self-determination, equality, justice, and human rights.  That was why the country worked hard to promote and protect human rights in its national development process.  Since the last review by the Committee, Viet Nam had gone a long way to become internationally well-known for outstanding progressive reforms and positive changes in all aspects of life, which took place not only in the booming economic and commercial areas, but also in the even more difficult ones, such as law, justice, non-discrimination, governance, and the promotion and protection of human rights and freedoms.  As a result, the material and spiritual life of more than 90 million of Vietnamese changed rapidly for the better.  The reforms took place at all levels of the Government to better serve the people, and civil servants were trained and equipped with more appropriate knowledge and skills to perform their duties.

Yet, difficulties and challenges remained, acknowledged the Vice-Minister, for which not only political commitments and concrete actions on the part of Government were needed, but the support and cooperation of all concerned stakeholders, including international ones.  Patience and the time were also crucial.  Viet Nam integrated widely and deeply into the world and the region; it concluded about 100 international treaties, which represented the legal foundation for Viet Nam’s national development and international cooperation.  Recently, the country had acceded to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention on the Rights of Persons with Disabilities, and was studying in earnest international experiences and accession to other international human rights treaties, including the International Labour Organization Convention 98 concerning the Application of the Principles of the Right to Organize and to Bargain Collectively.  The new Treaty Law required an implementation plan for each ratified treaty to ensure that it was honoured in practice and that necessary actions, including legal changes and dissemination of the treaty, were taken for the successful implementation.  The implementation plan would also be adopted for the Committee’s upcoming concluding observations, the Minister said.

The Ministry of Justice was a lead coordinating agency for the implementation of the International Covenant on Civil and Political Rights and for ensuring that it was reflected in the legal system.  All the Covenant provisions and the last 23 concluding observations by the Committee had been carefully studied, examined, and used in the law making process.  A new Constitution, adopted in 2013, contained a number of important provisions on the promotion and protection of human rights and freedoms; since then, over 100 laws had been reformed or enacted, including many human rights-related laws.  Viet Nam was increasingly focusing on disseminating legal information and legal education.  A new Law on Legal Dissemination required all legal rules and treaty rules to be fully and clearly disseminated to the people to ensure that they knew the rules, especially those on human rights promotion and protection.  The Vice-Minister concluded by stressing that Viet Nam would continue to work hard towards achieving its goal of having prosperous people, a powerful nation, and a democratic, just and civilized society.  In that sense, the Committee Experts should look at the overall positive picture, the strong development trends, and acknowledge both the clear commitments and the challenges to the promotion and protection of human rights and freedoms in Viet Nam.

Questions by the Committee Experts

At the outset, Committee Experts expressed hope that the constructive dialogue would support Viet Nam as it moved forward in implementing its international human rights commitments and stressed the dialogue’s potential to contribute to the country’s vigorous efforts to achieve the Sustainable Development Goals.  Regretting the delay in the submission of the periodic report, which had been due in 2004, the Experts nevertheless took positive note of the steps taken to comply with the obligations under the Covenant and welcomed the adoption in the Constitution of a chapter dedicated to human rights.

The Constitution, which was of a superior legal order and prevailed over the Covenant, in its Article 14 limited the scope of international human rights instruments for issues of national security or social order, Experts noted, raising concern that this effectively restricted the rights of human rights defenders, minority groups, and all those whose political views opposed the Communist Party of Viet Nam.  Furthermore, the concept of national security provided by the Constitution was too broad and could be invoked to limit freedom of expression, freedom of religion, and other freedoms.  What safeguards were in place to ensure that the national security-related laws and regulations were not arbitrarily and disproportionately used, especially against dissidents and minority groups, and that all permitted restrictions on the rights under Covenant were strictly necessary and proportional? 

With regard to the applicability of the Covenant, the Experts asked about cases in which the Covenant was invoked before the courts and measures taken to make its provisions known to the population, Government officials, and law enforcement agents.  They noted significant errors in the Vietnamese translation of the text of the Covenant and asked about its translation in indigenous languages.  The delegation was asked about the intentions to strengthen the application of the Covenant by giving it a stronger status or by enabling its direct application in the domestic legal framework, and the steps taken to implement the Committee’s previous recommendations, such as to ratify the Second Optional Protocol, aiming at the abolition of the death penalty.

The Experts asked about the establishment of a national human rights institution in accordance with the Paris Principles, independent from the Government, able to hear and effectively investigate allegations of human rights violations and grant remedies.  What was the nature and number of charges and convictions for offences related to violations of civil and political rights over the past five years and what remedies had been provided where a violation of rights had been found?

Turning to discrimination, the Experts asked about the delay in the adoption of a comprehensive anti-discrimination law, number of discrimination cases brought before the court, the status of the draft bill on transgender persons adopted, and measures taken to end stigmatization of transgender persons in access to employment.  Despite the law on gender equality, women continued to suffer discrimination in family and in employment and did not benefit form equal treatment when it came to education and housing, particularly in rural areas.  Similarly, discrimination against minorities persisted despite the law protecting their rights, while persons with disabilities still faced difficulties in exercising their rights and accessing public services.

The use of the death penalty was a matter of great concern.  Viet Nam ranked third, or even second, in the number of death penalties in the world.  The delegation was asked about the crimes that carried capital punishment, the number of persons who were sentenced to death, and whether it was possible for the country to envisage a moratorium on the death penalty with a view to its abolition.

A series of questions was asked on gender equality laws and policies, with Experts especially interested in the impact of the National Strategy for Gender Equality after nine years of implementation and the steps taken to eliminate gender stereotypes, while on the quotas to increase women’s political participation, they remarked that the law on election, which reserved 30 per cent of the candidatures for women, neglected to pay sufficient attention to number of women actually elected. 

On violence against women, the delegation was asked to comment on the contribution of the law on Cyber Security to combating violence against women, statistics and data on sexual violence against women, and the number of recently reported cases of marital rape.  Abortion was not criminalized but revealing the gender of the child was – why was that?

Given the country's history and the hope that it had aroused around the world, Viet Nam's human rights policy should be more ambitious, the Experts remarked and asked under which conditions the state of emergency could be declared.  The Constitution mentioned "national security" seven times, they said, asking the delegation to provide a precise definition of national security and to explain the grounds for distinction between terrorism against Viet Nam and terrorism in general.  They also inquired about the notion of criminalization of intent to commit a crime or the preparation of a crime in the country's legislation, and the number of individuals detained on charges of crimes against national security and the sentences that had been handed down.

The Committee was concerned about 226 cases of deaths in detention during the 2011 to 2014 period and were especially concerned that some of the deaths had occurred in pre-trial detention or not long after detention.  Viet Nam had refuted the allegations of the existence of prisoners of consciousness and had allowed some international organizations and diplomatic missions to visits certain places of detention, the Experts said and asked the delegation to comment on those visits.  One of the major shortcomings of the Criminal Code was prolonged pre-trial detention, which in the context of the lack of prosecutorial independence and the lack of the protection of the rights of detainees, was a serious concern, as was the regulation allowing indefinite solitary confinement.  Would Viet Nam ratify the Optional Protocol to Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment?

The Experts recognized the progress Viet Nam was making in the area of juvenile justice however, the continued detention of juveniles was still an issue of concern as was the low age of criminal responsibility set at 16 years.  How many youths were in detention centres and under what conditions were they detained?  Was the new legislation on trafficking in persons properly implemented?

Replies by the Delegation

The Constitution of Viet Nam guaranteed the protection of human rights, which were also protected by the Civil Code and the Penal Code in particular.  For now, no court had invoked the Covenant directly, the delegation said.  Several campaigns had been carried out to disseminate the provisions of the Covenant and brochures had been produced to inform the general public as well as the officers of the State, while human rights were integrated in curricula at all levels of education.  There were over 600 activities in total to disseminate the Covenant.  There was also an interdisciplinary commission charged with the dissemination of the provisions, and two training courses for the preparation of national reports had been developed. 

The 2015 revision of the Criminal Code had reduced the number of crimes punishable by the death penalty to 29, and that number had been further reduced and currently stand at 18.  The death penalty was applicable to most serious crimes only, such as murder, attempt to commit murder, crimes sabotaging peace, and war crimes.  The legislation defined two types of terrorism, against the peoples’ administration and terrorism in general, which could be explained by the long history of crimes against the peoples’ administration.

The fact that Viet Nam did not have a specific law on discrimination did not mean that discrimination cases were not being addressed.  The Constitution provided for equality and non-discrimination, and there were specific laws that dealt with various types of discrimination.  For example, the Labour Code prohibited discrimination on the basis of race, colour, and sexual orientation, among others, and there was also capacity-building programme on addressing the violations of gender equality for labour inspectors and public civil servants.  Yet other laws addressed discrimination in family, education, access to justice and civil procedure, while the principle of non-discrimination was applied in all areas, including in relation to minority groups, children, and persons with disabilities.  Gender dimension was included in all those laws.  A transgender law was in the process of preparation, whose draft would be available for public consideration.  The law on compensation applied both to individuals and groups, and the Criminal Procedure Code provided for the right to complaint and the right to compensation in cases of discrimination.

The Criminal Code defined marital rape as an act of rape and prohibited it; however, because of tradition and customs, women reluctant to report such crimes.  The law on the fight against domestic violence had been in place and over 10,300 cases had been registered in 2018.  Viet Nam had adopted a national action plan against violence in the workplace, while sexual harassment was considered a gender-based discriminatory offence.

Illegal abortion and sex selective abortion were criminalized, the delegation said, pointing to a decrease in the number of abortions by teenagers and young women between 2010 and 2013 and adding that the trend continued, helped by policies and programmes on sexual and reproductive health and information campaigns targeting adolescent girls.

The law on election of the National Assembly required that 30 per cent of the candidates were women and it was up to the people to decide who to elect.  The law had resulted in women taking 26.8 per cent of the positions in the National Assembly.  The current retirement age had been set over 50 years ago and the retirement age gap between women and men, which was currently five years, would be addressed in the upcoming reform of the Labour Code which would narrow the gap to two years in 2021.

Turning to questions raised on compulsory drug treatment, the delegation said a court order was necessary to apply the treatment and explained that a limited number of persons were sent to compulsory rehabilitation centres.  There were two types of labour and drug treatment centres, compulsory and voluntary, with the latter being advocated, and as a result, an increasing number of people volunteered.  The labour component of the treatment was of a limited scope and not applied during weekends.  It was based on the sentences and a consent of the addict, therefore it could not be characterized as forced labour.  The delegation further said that 123 of the 155 rehabilitation centres had been run by the state in 2014 and that the number had been reduced to 105 in 2018.  There were currently 6,048 persons in the detoxification centres, and of those over 2,000 were undergoing compulsory treatment.

The law on combatting human trafficking had entered into force in 2010, and since then, 934 cases had been recorded.  Victims received consultation, therapy, access to labour and financial aid.  Even though Viet Nam did not have a specific law on torture, the country had sufficient legal capacity to address all such cases.  Corporal punishment had been criminalized in 2015.

Pre-trial detention could be extended in case of very serious crimes and in order to prevent the detainees' escape or destruction of evidence; the extension was provided for under the law, and was authorized by the prosecutor.  The detainees had the right to know why they were detained and the right to legal representation.  In 2018, Viet Nam had enabled over ten visits to places of detention to international organisations and diplomatic missions.  Death in detention occurred for various reasons, the most important being diseases, HIV/AIDS, tuberculosis, cancer, as well as mental breakdown and the related suicides.  The prosecutor supervised autopsies of the bodies and investigations of the scenes of death.

The judicial sector reform, inter alia, aimed at establishing the juvenile justice system, in cooperation of various international institutions and organizations.  The juvenile courts would be set up at local and provincial levels where at least 50 cases involving juveniles had been registered.  Judges would receive training in how to deal with juvenile justice, and yet another capacity-building programmes would be organized for judges, prosecutors, lawyers, and other judicial personnel on the new rules governing juvenile justice.  Furthermore, progress was being made in narrowing the scope of the criminal liability of persons under the age of 14.  The delegation explained that juvenile courts had a jurisdiction over criminal cases of the persons under the age of 18, as well as their family and marriage disputes.

Viet Nam would seriously consider the possibility of establishing a national human rights institution in order to fulfil the void in the existent institutional architecture.  It was also studying the Paris Principles and experiences of other countries, both those that applied them and those that did not.

Questions by the Committee Experts

Commenting on the independence of the judiciary, the Experts remarked on the criteria for becoming a judge, which was the loyalty to the fatherland, and that the Communist Party was in charge of judicial appointments.  They asked about the participation of lawyers in criminal procedures and the actions planned to improve their access to the accused, particularly in criminal cases.  They raised concern about the harassment and intimidation of lawyers who worked on sensitive cases and asked about measures in place to ensure their safety and independence.

The new law on religion had increased the Government’s control over religious communities and included many constraints against them on the bases of a threat to national security, which would lead to violations and infringements on the rights of religious communities.  Many religious leaders complained about violence, and some had even been killed.  It was in Viet Nam’s interest to liberalize the law on religion and prevent violence against religious leaders, Experts stressed, and inquired about the reports of police units being dispatched to stop the Montagnards religious activists from seeking asylum in Cambodia and Thailand, which resulted in the arrest and imprisonment of hundreds of them.  The pluralism of the nation of almost 100 million people took the place of pride in Viet Nam, Experts remarked, asking whether they were allowed to peacefully practice their religion without the interference from the Government.

Extensive referencing of national security in the Constitution had an effect on the freedom of expression.  The 2016 press law prohibited reporting on politically sensitive issues and the criticism of the State, in clear violation of the Covenant.  How many journalists were in prison for the work they were doing? 

They were also concerned about reliable reports on attacks against human rights defenders and campaigners and the low number of prosecutions.  What positive steps was Viet Nam taking to protect human rights defenders, condemn and discourage violence, ensure effective investigations, and to provide remedies?  What steps were planned to allow human rights defenders the necessary latitude to carry out their activities, including by engaging with various United Nations bodies, without fear of restrictions or reprisals?  In addition, what was being done to ensure that Decree 136 that empowered authorities to bar Vietnamese citizens from leaving the country was not inappropriately used to restrict travel of human rights defenders, in the name of national security?

What system was in place to ensure that the approval of civil society meetings was in line with the right to freedom of association, and how was Viet Nam ensuring that the bar associations were fully autonomous and independent from the Government?  Viet Nam did not have the law on peaceful assembly and demonstrations, Experts noted, raising concern about the use of force by the police against the participants in peaceful demonstrations, and the reported restrictions on the right of religious and ethnic minorities to a peaceful assembly. 

When it came to political pluralism, Experts wondered how the refusal to approve candidates to run for an election could be appealed and whether candidacy requirements prevented persons with disabilities, young adults, and persons with a certain social status from becoming candidates.  Independent candidates had to go through multiple rounds of negotiations at the Fatherland Front to be selected as official candidates.  Were there any plans to change that procedure so that the approval of the candidates would be independent from the Communist Party?  On the matter of free and fair elections, the Experts asked how Viet Nam would avoid voter fraud in the coming elections, such as ending proxy voting, conducting ballot counting in public, immediately announcing preliminary results, and facilitating election monitoring by independent organizations, and how it would protect the right to vote for all, including prisoners.

It appeared that the enforcement of anticorruption laws was selective, while those who attempted to expose corruption, including journalists and whistle-blowers, continued to face censorship, arrest, and reprisals.  Several anti-corruption laws had been mentioned in the report and the Experts inquired about the number of cases detected, investigated, and prosecuted in the last five years, and about other means, apart from the legislation, to eliminate the corruption and bribery of public officials.

Turning to land seizures, the Experts asked about the process of meaningful consultation and the accommodation of those whose lands were to be seized, and to ensure that religious, indigenous, and other minority groups were not disproportionately affected by land seizures, which would further widen Viet Nam’s socioeconomic gap.

Replies by the Delegation

The delegation remarked that certain questions the Committee Experts raised were political in nature and did not have to be answered, and pointed out that some of the information and data they provided did not reflect the actual state in the country.

The definition of the national security was provided in the 2014 law and was based on the best practices and experience on the matter of national security throughout the country’s history.  The law prohibited seven distinct acts which represented a possible threat to national security; the severity of the act committed dictated the sanctions against the perpetrator. 

There was no specific law on the protection of human rights defenders as the general law did not make a distinction between regular lawyers and human rights defenders. More than ten million workers were currently members of trade unions and Viet Nam was regularly studying the best practices related to the improvement of the favourable conditions for the workers in addressing their right to assembly.

The Criminal Procedure Code and the Criminal Code provided for the right to a legal representation, said the delegation, adding that once a lawyer was registered as a legal representative, s/he was allowed to participate in the investigative procedure.  Lawyers were not under any pressure, and were granted access to documentation related to the cases.  In addition, the safety of lawyers was protected on two bases, as citizens and as law practitioners.

Transparent mechanism was in place to provide for anyone to exercise their right to vote.  The counting of the voting results was conducted in a transparent manner and complaints could be made both by individuals and by political organizations.  Inmates serving their sentence were not allowed to vote, while those in pre-trial detention were.  Viet Nam was carefully studying the provisions of the United Nations Convention against Corruption, said the delegation, adding that its anti-corruption law was currently being amended.  Viet Nam had a very effective mechanism to prevent and address the cases of corruption.

As for the independence of judiciary, according to the organic Law on People’s Courts, the National Assembly appointed the judges to the Supreme Court, which supervised the lower courts.  A national examination was necessary for any judge to be appointed, and judges could be dismissed before the end of their term in case they reached the retirement age or in cases of serious violations of the law.  A website dedicated to publishing of judgements had been set up in order to further promoted the judicial independence.

As for the monitoring of places of detention, the delegation stressed that the public prosecutor was independent and was supervised by the higher prosecutor.  The people’s prosecutor conducted investigations into all deaths in custody, and treated any death resulting from the abuse of power or corporal punishment, as a crime, in accordance with the law.

The press law stipulated the rights of journalists and reporters and prohibited any acts that infringed their rights; it also prohibited censorship, harassment of journalists and reporters, and seizure of their equipment.  In the last 17 years, the press had joined hands with the socioeconomic development of the country.  There were 868 newspapers, as well as international media outlets and agencies in Viet Nam, which was a clear sign of the improvements in the area of freedom of expression, speech and press.  Two-thirds of the people in Viet Nam used the Internet, which raised the need for a safe cyberspace that was being provided by the Cybercrime Law.

The new law on religion provided that all religions were equal before the law and was endorsed by various religious organizations and groups.  Facilities and favourable conditions were being provided to the 23 existing religious organizations and more than one hundred smaller groups whose rights were guaranteed by this law.  The registration of religious communities would enable the Government to provide favourable conditions for their operations, and those not yet registered were being encouraged to do so.  All in all, there was no discrimination on the grounds of religious practice, reiterated the delegation.

Viet Nam was a country with 54 ethnic minorities, said the delegation, adding that there was no definition in the country of indigenous communities.  A number of comprehensive programmes and plans were in place on a whole range of issues of concern to ethnic minorities, while preferential treatment was being provided to those most in need.

Many development and constructive projects used the land, in consultations with the minorities; land confiscations were being done in a transparent manner, compensations were provided, and the rights of land owners were protected.  A complaint mechanism was in place and all complaints were followed up on.

The development of the legal system of Viet Nam was an on-going process, the delegation remarked, and said that the Covenant provisions were being continually integrated in the legislation.  Remedies were being provided in cases of violations of civil and political rights, and all individuals could lodge a complaint and would be awarded compensation if the case was proven before the court. 

Concluding Remarks

Nguyen Khanh Ngoc, Vice-Minister of Justice of Viet Nam, in his concluding observations, thanked the Members of the Committee for the open dialogue in which the delegation tried to show the great efforts the country had made to improve human rights. 

Ahmed Amin Fathalla, Committee Chairperson, concluded by praising the constructive dialogue and recalled that the Covenant should be applied in all countries, irrespective of their legal order.  Viet Nam should continue to address the issues such as children’s rights, judicial independence, the death penalty, and the allegations of torture in detention.

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