PANO – Articles, recently published on some domestic and international websites, requested the omission of Article 88 in the Vietnam Penal Code in 1999 (amended and supplemented in 2009), arguing that this article violates the International Covenant on Civil and Political Rights that Vietnam signed and tramples on freedom, democracy and human rights. They also asked to free immediately those who call “prisoners of conscience”. This is an irrational request.

On May 16th, 2013, Long An Provincial People’s Court opened the first instance trial on the case of Dinh Nguyen Kha and Nguyen Phuong Uyen for “conducting propaganda against the Socialist Republic of Vietnam”. Photo: catphcm.bocongan.gov.vn

Article 88 in Vietnam’s Penal Code regulates violations in conducting propaganda against the Socialist Republic of Vietnam. Accordingly, propaganda acts against the Socialist Republic of Vietnam include: a) Propagating against, distorting and/or defaming the people’s administration; b) Propagating psychological warfare and spreading fabricated news in order to foment confusion among people; and c) Making, storing and/or circulating documents and/or cultural products with contents against the Socialist Republic of Vietnam. (The above acts can be public or secret).

On the other hand, it can be understood that violators are those who deliberately commits acts with an aim to stand against the Socialist Republic of Vietnam.

In both theory and practice in any state, the law reflects the will of a state and protects that state. Vietnam Penal Code is a component of Vietnam’s law and is responsible to protect the Socialist Republic of Vietnam.

That can be seen in the Penal Codes of other countries. For example, Section 2385 of Chapter 115 of the US Code prohibits “Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence”.

Within the objects that the Penal Code protects, most countries consider the existence of the state, regime, independence and territorial integrity as the most important. Therefore, it is easy to recognize why violations in this category are listed in the first chapter, regulating specific crimes.

With legal evidence, some people who committed the act of conducting propaganda against the Socialist Republic of Vietnam, as regulated in Article 88 of Vietnam’s Penal Code, have been publicly judged. On August 10th, 2012, Hanoi People’s Court opened the first instance trial on the case of Le Thanh Tung (44, Phu Lo commune, Soc Son district, Hanoi) for “conducting propaganda against the Socialist Republic of Vietnam”, pursuant to Points A and C, Clause 1, Article 88 of the Vietnam Penal Code. On September 24th, 2012, Ho Chi Minh City People’s Court sentenced Nguyen Van Hai (blogger Dieu Cay, 60) to 12 years of imprisonment for “conducting propaganda against the Socialist Republic of Vietnam”, Ta Phong Tan (44, Bac Lieu province) to 10 years of imprisonment and Phan Thanh Hai, 43, to four years of imprisonment and three years’ house arrest. On May 16th, 2013, Long An Provincial People’s Court opened the first instance trial on the case of Dinh Nguyen Kha and Nguyen Phuong Uyen for “conducting propaganda against the Socialist Republic of Vietnam”. Through the courts, most of the defendants admitted their wrong-doings and violations of Vietnam Penal Code. They also regretted being bribed and incited by domestic and overseas individuals and organizations.

Those who asked for abolishing Article 88 hold that “the Socialist state is a vague concept”. In fact, this is an equivocal understanding because the birth and existence of the Socialist Republic of Vietnam are based on a clear legal foundation. The International Covenant on Civil and Political Rights in 1966 clearly states that all peoples have the right of self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development.

The Socialist Republic of Vietnam (earlier the Democratic Republic of Vietnam), founded by President Ho Chi Minh with the Declaration of Independence on September 2nd, 1945, is the state that has the first democratic constitution in Southeast Asia. At the 32th meeting of the General Assembly of the United Nations on September 20th, 1977, Vietnam was recognized as the 149th member of the United Nations.

On the other hand, some people argue that, from a socio-political angle, crimes must be those behaviours that endanger the society's conditions of existence. Accordingly, they hold that practising freedom of speech is one of these conditions, so that this behaviour should not be considered a crime. As a result, they say that Article 88 of Vietnam Penal Code contradicts to the definition of crimes.

It should be understood that crime is a class category and defining a crime depends on the viewpoint of the ruling class. This principle has existed in the penal codes of states around the world. Any behaviours, expressed by words or actions, that is considered dangerous, must be quickly stopped.

Moreover, some argue that Article 88 is only needed when Vietnam has “demands for protecting national security” or “in urgent situation that threatens life throughout the country and Vietnam officially announces this situation”. In their opinion, “Vietnam has enjoyed peace for many years and the country has never announced an urgent situation due to national comprehensive threat” so that Article 88 “has not met the above mentioned conditions”.

Back to history, when King Le Thai To defeated the Ming invaders, gained independence and established laws, the guideline on the law defines that it must be suitable for the present time and in the future. Building the law to manage the society and maintain security and social order without forecast and only issue the law when the country is in danger is not acceptable.

Arguments that are against Article 88 are vague and groundless. Those arguments should be resolutely rejected.

Written by Nguyen Huu Phuc and Hoang The Nhan

Translated by Ngoc Hung