FIFTY YEARS of VIOLATIONS of Human Rights in Communist Vietnam 1945-1995

Inadequacies in the Concept of Law

Commenting on the deficiencies in the 1992 Constitution, Hoang Xuan Hao noted that the United Nations Charter, the Universal Declaration of Human Rights, and the International Covenants of Economic, Social, and Cultural Rights stress that member nations should actively promote respect of human rights. The legalization of and specific limitations to these rights should be ensured by constitutional law. The reason for this lies in the fact that a law is to be discussed, deliberated, examined through constitutional procedures, and passed by the national congress which represents the will of the entire people and which is controlled by public opinion. If those human rights are only regulated by the administrative branch, which may easily result in arbitrary decisions, they will not represent the will of the people. Therefore, only by the constitutional law could the rights to freedoms be guaranteed, freed from suspicion of absolutism.

Disregarding the fundamental legal principles with which all the states of rule of law have to comply, the Socialist Republic of Vietnam has exercised the regulatory power of the Council of Ministers to adjust legal matters. Article 104 of the Constitution stipulates: "The Council of Ministers is the highest executive and administrative organ of powers of the State." This council, however, has issued all forms of "decisions" and "arretes" as laws, an act of legislative power that is within the jurisdiction of the National Assembly. In the religious domain, the Decision 297 of November 1977 and the Decree 69 HDBT of March 21, 1993, for instance, are unconstitutional concerning domestic laws and legal international laws. It seriously violates Paragraph 55.C of Article 1 and Paragraph 56 of the U.N. Charter. The Socialist Republic of Vietnam, thus, violates both the spirit and contents of the Universal Declaration of Human Rights and the International Covenants by which it pledged to abide (Hoang Xuan Hao, Vi Pham Nhan Quyen, 1993: 18-19).

The Twist in Phraseology

The dispossession of justice has been manipulated by many vile tricks. First, all powers are concentrated in a "puppet" institution: the National Assembly, the all-puissant system of powers of the Party entitled as "the supreme organ of representatives of the country." To manipulate all powers, this national assembly seizes all the fundamental and legitimate powers of the country: the legislative power, the administrative power, and the legislative power. Article 109 of the 1992 Constitution provides that the government is the supreme executive organ of the National Assembly. Article 84 vests the National Assembly with the rights "to vote and vacate the President of the State and the Prime Minster; to vote, refute the appointment of, and vacate the judge of the Supreme Court; to supervise, cancel or annul the decisions of the People's Supreme Court, the Chairman of the Institute of Control, etc. . Article 135 constrains the presiding judge of the Supreme Court to be responsible for and to report his tasks before the National Assembly. Similarly, Article 139 constrains the Chairman of the People's Institute of Control to be responsible for and to report his his tasks before the National Assembly. Thus, the National Assembly compiles the laws and regulates the constitutional legalization of the law itself. Furthermore, it replaces the precise law terminology with the ambivalent phraseology that can be interpreted in two or three different ways. For example, the clause "the Party assumes the leadership; the Government, the management; and the People, the mastership of the country" could be interpreted variously: Since the Party assumes both the leadership and the management of the country, the people then simply obey. Such an ambivalent phraseology can also be found in such phrases as "to be responsible before the people," "democratic centralism," "centralism of a democratic character," or "democracy under the leadership of the Party." Therefore, the 1992 Constitution is inconsistent and incoherent. One term is inconsistent with the other, and one clause is in contradiction to the other. Free elections are organized through the compromise with and recommendation of the Fatherland Front. The Fatherland is Vietnam, but it must be the Socialist Fatherland! These biases are created to benefit the Vietnamese Communist Party that plays the role of a man behind the scene and that ultimately uses violence to govern the country to its own volition. It simply wants to have a language of justice. There are practically no laws. In other words, there is a kind of laws that serve as an instrument for the despotism of a Party, but those are the laws of a State of "rule of law." On the other hand, it uses a vague language abusing such terms as "according to the laws of Vietnam," (Article 25), "in accordance with the laws" (Articles 54, 57). In cases where certain rights are not regulated or are forgotten, these rights will then only be purely theoretical (Hoang Xuan Hao, Vi Pham Nhan Quyen, 1993: 11-15).

For nearly half a century, the Vietnamese Communist Party has promulgated four constitutions to establish all kinds of democracies (Republic, People's Democracy, Democratic Centralism, and Socialism). Nevertheless, it has forgotten to compile the laws that would regulate the citizen's rights to freedom of assembly and freedom to organize a political party. The Vietnamese Communist Party has cunningly blinded the world to this fact: It is truly the man behind the scene who invents such things as "the People," "the National Assembly," "the State," "the President of the State," "the Government," "the Court of Justice," "the People's Supreme Institute of Control," and even "the Association of Lawyers." It burnishes the "purely formal democracy" which Marx critically condemned (Tran Thanh Hiep, 1995: 19-27).

The Dispossession of the Right to Self-Determination of the People

Tu Tri of the Center for Human Rights conceived that, legally, any Vietnamese citizen has the rights to opposition, which embodies the right to self-determination. This is a legal right recognized by both domestic and international laws. In effect, domestic law, that is, the law that is effective in Vietnam, recognizes the right to opposition, even though the Vietnamese Communist Party and the State deliberately disallow it. It is true that there is no specific stipulation on the right to opposition. However, what if the right to opposition is not the total body of human and civil rights recognized by the 1992 Constitution of the Socialist Republic of Vietnam? The Constitution, as is defined by the Constitution itself, has a "supreme legal effectiveness." If an ordinary "decree-law", a regulatory law, or any other laws are unconstitutional, then these laws should be made ineffective. Nevertheless, members of the National Assembly could not do as they wish. They are only watchdogs for the Vietnamese Communist Party since the National Assembly itself is only an office where the Party's decisions are registered. The Party passes bills of laws through it. The Party, in other words, seizes all powers through the National Assembly.

Article 2 of the 1992 Constitution stipulates: "The State of the Socialist Republic of Vietnam is a State of the people, by the people, and for the people. All the powers of the State reside with the people." Article 3 of the 1992 Constitution stipulates: "The State guarantees and continually develops the mastership in all aspects of the people." If the people are truly the masters of the State in all aspects, the State and the Party then could not replace the people, the masters of the people. In other words, they could not make the people their servants. Furthermore, if the people are really the masters, they have all their rights, including the right to replace their "leaders" or their "managers," much less the right to opposition.

Article 4 of the International Covenant of Political and Social Rights prohibits violations against the human person. Other articles in it guarantee other rights such as the right to life (Article 6), the right not to be tortured (Article 7), the right not to be detained arbitrarily (Article 11), the right not to be tried arbitrarily (Article 15), the right to corpus habeas (Article 16), and the basic freedoms, freedom of thought, freedom of religion, freedom of religious practices (Article 18). They are all basic human rights. The Vietnamese Communist rule, however, has ignored them. It did not truthfully translate them into its domestic laws. In this manner, it has not carried out its international obligations as a member of the Covenant and the United Nations. The Communist rule cannot excuse itself from abiding by the international principles of human rights by using the so-called "national tradition" to elucidate its illegal deeds.

On the other hand, the Communist rule has illegally and ruthlessly repressed opposition. The arrests of Nguyen Dan Que, Doan Viet Hoat, and Nguyen Dinh Huy, for instance, are incidents of plain repression that aimed to stifle opposition. It unblushingly claims with sophism that "there exist all rights to freedom and democracy in Vietnam." The 1992 Constitution, in effect, is not conceived properly in an idealistic sense of the term as it is in the West. It is only an instrument, a device, or an artful scheme to display a vendible democracy. There is no wonder when one hears the Communists' stiffened tongues stammer with such rhetoric as "the Party regulates by the political regime, the rights and obligations of the citizen," "the Party initiates and promotes the principles of organization and activities of the organs of the State," "the Party regularizes the relationship between the Party and the State," "the Party assumes the leadership, the people, the mastership, and the State, the management." In reality, there is nothing but the Party, the only organ that gave and has given itself unlimited powers to govern the country.

The uttermost power centralization of the Vietnamese Communist Party is merely a verbatim imitation of the principle of Bolshevik "democratic centralism" that Lenin applied in the Soviet Union after the October Revolution. The Party compiled the Constitution, made laws, enforced the law, gave judgments in lawsuits, and controlled all steps in these processes. In other words, not only does the Party don the "leadership," it also exercises the "mastership" and "management" of the country, even though these rights are not prescribed in the Constitution.

Regarding the social civil life of the citizen, the abuses of power by the Party prove to be much more downcast. Concerning human and civil rights, the Party executes strict measures to negate all the people's demands for them. The Party only recognizes them on paper or when it confronts international pressure. A machinery of screening has been created to exclude those who do not follow the Party's line and, especially, those who openly oppose the Party, the Fatherland Front, and its satellite organizations. Vested with constitutional power (Article 9) and supported by the State, the Party machinery eliminates anyone who wishes to exercise his rights of the human person and appropriate political rights of the citizen. Only the Fatherland Front has the right to "select and recommend candidates to run for seats in the National Assembly" (Article 4, Laws for National Elections of Representatives in the National Assembly, April 15, 1992).

The right to self-determination of the Vietnamese people are made ineffective in many ways by the Communist rule's vile tricks and artful schemes. One of them, according to Tu Tri, is its plan to exterminate opposition and render all human and civil rights inapplicable. The constitution recognizes them. However, if the domestic law does not determine rules and regulations for the citizen to exercise these rights, the citizen's rights will then become meaningless. This is because of the fact that although the constitution is a legal document promulgated by the highest legal institution, it cannot be directly put into practice without regulatory laws. The Communist rule has cunningly inserted these laws in the 1992 Constitution. Nevertheless, it twists the law with such a vague phraseology as "in accordance with the law of Vietnam" (Article 25), "as regulated by law" (Article 44), and "in accordance with the stipulations by the constitution" (Articles 54 and 57), for instance (Tu Tri, 1955).

Subjective Rights versus Objective Rights

In terms of jurisprudence, as Tu Tri put it, the Communist rule seems to negate the principles of subjective rights. In the eyes of the Marxists, there cannot be "rights" that are above and outside "the law." Such things as "natural rights" are only products the capitalists invented to govern the masses. Therefore, there are no "human rights," the selfish individual rights of the capitalist. The best way is to build at all costs a classless society in which there will be no need of such laws, and thus human rights will eventually be out of the question. However, in the by-passing period and while progressing toward a classless society, the proletarian state governs society according to the absolute law enacted by the proletariat, and only the rights that are regulated by that law can be of concern. These rights are "objective rights." Naturally, in terms of Marxist jurisprudence, there will be no political opposition in Vietnam. Nevertheless, because of the fact that the Communist rule has abandoned the Marxist viewpoints of jurisprudence and participated in the International Covenants on Human Rights and that these covenants maintain and heighten the principles of "subjective rights," the Communist rule seeks to pursue its double play. However, on the legal plane, if it wants to follow the Marxist path definitely, it then has to declare to the international community that it will cease to participate in those two international covenants. Otherwise, as long as it does not officially change its attitude, it must end every series and patterns of violations of human rights in every area of life, especially in the areas of politics, culture, and religion. It is safe to say that the right of opposition has its legal basis for it embodies the right of self-determination of the people. The people are hindered from exercising it because of the Communist rule's political obstinacy and illegal impedance. Therefore, the question of opposition in Vietnam is how to end this impedance. The Communist rule should necessarily respond to the following just demands: 1) Respect befittingly Article 2 of the 1992 Constitution according to which "The State of the Socialist Republic of Vietnam is the State of the People, by the People, and for the People;" 2) Apply well Article 3 of the 1992 Constitution to practically "guarantee and develop the right of mastership of the People in all areas, punish severely all acts that violate the interests of the Fatherland and the People." (It should be observed that these acts are practically generated from the Vietnamese Communist Party's side and not from the opposition's side); 3) In order to return to the People their "rights of mastership," it is necessary to abolish Article 4 of the 1992 Constitution which reserves for the Vietnamese Communist Party the monopoly of leadership of the country, Statement 2 of Article 6 regarding the principle of "democratic centralism" which au fond dissimulates absolutism, Article 9 regarding the Fatherland Front, which is basically a machinery to repress the people and eliminate opposition, the closing statements of Articles 12 and 13 and the heading of Chapter IV which falsely identifies the Fatherland with socialism; 4) Amend Article 15, abrogating the phrase "in the orientation of socialism" so that the "free market" system will not be cornered and corrupt elements and all productive forces will be actually liberated;" 5) In order to prove its earnest observance of international legal norms of human and civil rights, the Communist rule should participate in the Protocol of the International Covenants of Civil and Political Rights so that, in the case it violates them again, private individuals will be able to lay claims on it before the U.N. Commission on Human Rights; and 6) Release unconditionally all intellectuals, writers and artists, priests, ... who are detained due to opposition.

Thus, there will be no opposition in Vietnam if the right of opposition is not exercised. And, when the Communist rule's acts of violations of opposition are terminated, opposition in Vietnam will appear to take its historical responsibility to bring Vietnam into the orbit of democracy and freedom (Tu Tri, Ibid.).

Absence of Separation of Powers

The separation of powers, Hoang Xuan Hao believed, can only exist in a pluralistic democracy where the separation of powers between the legislative, the administrative, and the judiciary is coordinated in conformity with the check and balance principle and where the entirety of interest groups in society can participate in the governance of the country by exerting their pressures on decision-making processes by public institutions and political parties. Nevertheless, this possibility cannot exist in the proletarian dictatorship system in Vietnam where the principle of separation of the three powers are annihilated for the "democratic centralism" principle. According to this principle, all powers of the State come under the control of the National Assembly which, in reality, is like a "puppet." It thinks and acts in accordance with the Party leadership's decisions. In concrete terms, members of the State Council are elected by the National Assembly and a number among the members of the National Assembly are both makers of the law and law orders and voters for members of the government, judges of the People's Supreme Court, chairman of the Institute of Control, supervisors of the law, and interpreters of the law and law orders (Articles 83 and 100 of the 1992 Constitution). However, in any case, the Vietnamese Communist Party is essentially the leader who practically controls everything since, according to Article 4 of the 1992 Constitution, "the Vietnamese Communist Party is the sole forces to lead the State and society; it is the fundamental agent that decides every victory of the Vietnam Revolution." Such a political totalitarian regime certainly would not guarantee the respect for human rights. Besides, the absence of a law that regulates the rights of the human person is a violation of human rights. In any case, a law that only represents the will of a separate individual minority group of people that arbitrarily seizes all the powers of the State, that both makes and enforces the law, that both supervises and interprets the laws, that both controls the judiciary machinery and commands all interest groups through the Fatherland Front (Article 9 of the 1992 Constitution) and the General Association of State Employees and Workers (Article 10 of the 1992 Constitution) is in serious violation of the principles of human rights.

To preserve its monopoly of power, the Communist Party is ready to eliminate any organization or political group that it considers as enemies. The 1992 Constitution stipulates, for instance, the right to freedom of religion with the provision that no one may use religious adherence or belief to violate the state law and policies. It is fearful that religious groups may become competing centers of influence in the society. Thus, it has consistently divided, oppressed, and repressed them. It establishes state-sponsored religious bodies such as the Catholic Patriotic Association and the Buddhist Church of Vietnam as watchdogs to control the Catholic Church and exterminate the Unified Buddhist Church of Vietnam.

The principle of proletariat dictatorship, according to Hoang Xuan Hao, is incorporated in the 1992 Constitution. One can enumerate such clauses as: The State of the Socialist Republic of Vietnam is the state of proletarian dictatorship having the historical mission to build the interests of socialism and progress towards communism (Article 2). The State adheres to the official ideology which is Marxism-Leninism. The Vietnamese Communist Party, armed with Marxism-Leninism, is the sole forces that lead the State and society (Article 4). The State applies the principle of democratic centralism (Article 34). The supreme power of the Socialist Republic of Vietnam (Article 82) is the National Assembly with absolute powers (Article 83 with 15 clauses). However, these powers are ambiguously vested in both the State Council and the Supreme Standing Committee of the National Assembly (Article 98). Since the National Assembly does not hold its sessions on a regular basis (Article 85) the State Council accords ultimate decisions on the governance of the country (Article 100 with 100 Clauses). Nevertheless, the State Council is not a decision making power. It is the Vietnamese Communist Party alone that has the absolute power since it is defined as the only forces that lead the State and society. It is not vested with all constitutional rights, but it holds indefinite terms of office and will never be removed from office.

On the economic plane, the Vietnamese Communist Party maintains the negation of the right to private ownership whereas the 1992 Constitution stipulates that the State establishes and implements the socialist ownership of the means of production and creates a national economy consisting of two components: a nationalized economy appertaining to the people and a cooperative economy fitting the working people (Article 18). Such a political and economic system reveals a totalitarian party-rule regime. It is faulty on the economic plane; and it is equally faulty in other domains. In the domain of philosophy, the foundation of Marxist-Leninist materialism is entirely opposite to the philosophical foundations of human rights and antagonistic to religions. In the legal domain, the one party-rule regime (Article 4 of the 1992 Constitution) violates the basic legal principle which specifies that power and responsibility form a pair. The Vietnamese Communist Party monopolizes powers, reserving for itself the supremacy over the State and society, but it is not bound to any legal responsibility. Moreover, it violates the legal core principle of democracy which enunciates that the authorities of the government will only consecrate through general elections, that popular co-optation is not permanent, and that this co-optation could be withdrawn at each election. The Vietnamese Communist Party considers itself a legal person, a legal entity, even though the people have not chosen it through a general election. It is devoid of the capacity of being the representative of people, and thus it is devoid of the legality to monopoly of powers and supremacy over the State and society. In the domain of political sciences, the totalitarian and party-rule regime is adverse to the two basic principles of democracy, which are the relativity of political truth and spirit of tolerance. The corollaries of these two principles are that they eliminate totalitarianism, class struggle, and democratic centralism.

Democracy consists of the respect for political decentralization, the check and balance of powers, and the plurality in all institutions and in all aspects of the society. In the domain of economics, the elimination of the private ownership leads to the extermination of creativeness, is adverse to the human nature, and obstructs the social and economic development. Moreover, the theory of surplus value is only valid in Marx's time. It becomes outmoded in these modern times when the revolution in all areas of science is taking place, thereby promoting a social creative destructure and eliminating the labor exploitation in Marx' s time.

The Vietnamese Communist Party has powers but is not bound by any responsibilities. The State, by contrast, has unreal power but is held responsible for the governance of the country. It creates an umbrella for the Party's safety. In the last analysis, the Party leadership comprises only several top party members. They become inviolable, so they can avoid responsibilities and blame their mistakes on the state executive authorities. Besides, the Party is only a discrete legal person. The people could not bring it before a court of justice. No court of justice could try it and imprison it. As a result, the ordinary people will always be "the objects for experiments" of incompetent leaders.

Article 130 of the 1992 Constitution stipulates that, when passing judgment, the judge and the jury are independent and comply with the law only. Article 17 of the Criminal Code stipulates the same provision. However, the court of justice, in practice, plays a nominal role for it is dependent on the Party and State's directives in some cases and on the Commission of Internal Security's decisions in others, but the Party will decide the sentence. It will not base its decision on the severity of the crime but on the danger the defendant would cause to the regime, instead. During the trial session at the Ho Chi Minh City People's Court on June 29, 1992, Nguyen Van Hien asked the Court to produce evidence of his crimes. Without hesitation, the presiding judge rejected the defendant's request, saying: "The evidence is not as important as your thought." Nguyen Van Hien was sentenced to life imprisonment and died in prison.

The 1992 Constitution is truly a hodgepodge, with a Protocol, a Preamble, and 147 Articles, many of which would have been more appropriate as part of an administrative memorandum or, at best, a decree or a simple law. Reading it, one gets the distinct impression that it is written for a propaganda document or a lecture addressed to cadres at the lower echelons. Democracy has to be fought for. Hanoi will have to be made democratic to enforce the principle of popular sovereignty, even though the 1992 Constitution says that "the government of the Socialist Republic of Vietnam is a government of the people, by the people, and for the people (Article 2) (Hoang Xuan Hao, Vi Pham Nhan Quyen, 1993: 11-15)."

Absence of Fundamental Legal Principles of Human Rights with Respect to Religious Freedom

Religious freedom, a fundamental right, has been systematically and seriously violated by the Socialist Republic of Vietnam on both factual and legal standpoints. On the factual standpoint, it offends the millennium-old moral traditions of our nation. On the legal standpoint, it seriously violates the international norms of the human rights stipulated by the United Nations in two aspects: 1) Its legislation has violated the fundamental legal principles of human rights with regard to religious freedom, and 2) The legislation has violated the international laws that its government has pledged to respect as a member of the U.N. or participant in the International Conventions.

The Separation between the Religion and the State

Under the influence of Confucianism, the Vietnamese people traditionally view the King as a recipient of a Mandate from Heaven to rule the country. The will of Heaven and the will of the people being one is made to comply with the wishes of the people, thus fulfilling the Heaven's Mandate. From this premise, the King does not have and does not need to rely on any religion to govern. Throughout the history of Vietnam, even during the time Buddhism reached its apogee, there was no such thing as a national religion. Nor was there a religious war that could be termed as crusade. In brief, based on the Vietnamese millennium-old concept, the principles of separation between the Church and the State have been upheld. Therefore, the Communist repression against the Churches of Vietnam is a serious violation against the Vietnamese noble moral and spiritual traditions, the spirit of religious tolerance between religions, and the harmony between the Churches and the Government (The Struggle Committee for Religious Freedom in Vietnam, White Paper on the Violations of Religious Freedom in Vietnam, 1993: 33-34).

This violation of the separation between the Religion and the State is shown in three domains: constitutional, legislative, and regulatory.

1. Constitutionally, although Article 70 of the 1992 Constitution recognizes the rights to religious freedom, it infringes on the very rights to religious freedom in terms of its deficiency, its vagueness, and its violation of these rights. The said article stipulates: "All citizens shall have freedom of belief and of religion. They may or may not adhere to any religion. All religions are equal before the law. Places of worship shall be protected by the law. No one shall be allowed to violate the freedom of belief and religion or take advantage of belief and religion to act against the state policy."

2. On the legal standpoint, the term "state policy" is ambiguously vague. Therefore, it has become a weapon for the government to interpret as arbitrarily as it pleases to stifle the rights to religious freedom. These vague dispositions violate the fundamental judiciary principles which require that any restriction on religious freedom, once enforced, must be clearly and strictly defined and must be interpreted in the strictest meaning of the term whereas "state policy" is a political concept that is not defined by the positive law. Therefore, "state policy" has become the two-edged sword that eradicates religious freedom in a country where cadres, in the last forty years, have been instructed that "if policy is valued as one, tactics will be tenfold and measures will be one-hundredfold." Therefore, the Marxist-Leninist political regime aims to eradicate religion which it considers to be opium whose effects corrupt and deceive people.

Philosophically interpreted, religion, is, at first, an unalienable right that exists before and above the State. Therefore, the authorities should not use the name of the "state policy" to try to violate religious freedom as long as the exercise of this right does not infringe on public order and morals and customs sanctioned by the law.

On the comparative law standpoint, international laws and the legislation in democratic countries never manipulate the concept of "state policy" to restrict freedom of religion. Still, there are deficient dispositions in the law. Article 70 of the 1992 Constitution, for instance, overlooks the three fundamental principles of religious freedom: the freedom of propagation of religion, the separation between the State and the Church, and the neutrality of the State vis-à-vis the Church. Without these principles, there cannot be religious freedom. In other words, the constitutive nature of religious freedom is systematically, fundamentally, and totally violated by the constitution.

3. In the legislative domain, until now, the Socialist Republic of Vietnam has no laws or statutes that officially define religious freedom. The absence of such legal documents violates the fundamental principle requiring that the rights to freedom must be guaranteed by law. It also violates the international obligations that it has pledged to uphold.

4. On the regulatory standpoint, by disregarding the basic legal principle of the judicial hierarchy of legal documents, the Socialist Republic of Vietnam has abused the regulatory power of the Council of Ministers to render legal matters that are within the competence of the legislature provided for in the constitution. The Council of Ministers has promulgated the Resolution No. 207 in November 1977 and the Decree No. 89-HDBT on March 21, 1991. These two regulatory documents were obviously unconstitutional with respect to national laws and illegal as far as international laws are concerned.

A Case in Point: Resolution No. 297 of November 1977

This resolution opens with a declaration of the principle of religious freedom, but the whole document contains restrictions, deterrents, and prohibitions jeopardizing this very freedom. Moreover, the style and terminology used in the Resolution are extensively vague, paving the way for further arbitrary decisions. The corollary of this politically tainted resolution is Article 81, Section C, of the Penal Code, promulgated on June 27, 1985. Practically, the article aims at religious repression. Still, the resolution violates the principle of separation of the State and the Church and the principle of neutrality of the State according to which the State demands that the clergy must motivate the faithful to carry out national policies and that they must obtain prior authorization for all forms of religious activities. Worse still, the resolution blatantly violates the rights to religious worship when it grants administrative authorities the power to appropriate any cathedral, pagoda, holy shrine, or any other religious facility for governmental use. Finally, the resolution bans all "superstitious practices," but the term is not clarified. This intentional omission can be construed as a tactic aiming at repressing and restraining popular beliefs and certain forms of traditional Taoist and Buddhist practices. Almost all restrictions contained in the Resolution 297 were repeated in the Decree N0. 89-HDBT, March 21, 1991.

By its decrees and the acts of violations of its cadres, the Socialist Republic of Vietnam had all intents and purposes to forbid religious gatherings and force the clergy and faithful of the Churches to join religious associations constituted and controlled by the government. It thus committed violation of Article 20 of the 1992 Constitution. The illegality of the decrees by the Council of Ministers additionally aimed at regulating and restricting religious activities. It thus committed violation of the exercise of the rights to religious freedom. According to the provisions for these rights, everyone shall be subject only to such limitations as determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the appropriate requirements of morality, public order, and general welfare.

VIOLATIONS OF THE CONSTITUTIONAL LAW

Besides the deficiencies and errors made in the compilation of the law and the violations against the principles of international law, the Communist rule in Vietnam has committed violations of the laws it promulgated itself.

Violations of the 1945 Administrative Decree and the 1946 Constitution

By the destruction of religious institutions before and after the Geneva Accords (1954), the Communist rule was in serious violation of the decree on the protection of the Democratic Republic of Vietnam promulgated on September 20, 1945. By inhibiting the citizens' rights to freedom of speech, freedom of the press, freedom of publication, and freedom of assembly, the Communist rule was in serious violation of Article 10 of the 1946 Constitution.

Violations of the 1983 Constitution

With oppression and repression against all forms of aspirations for freedom, democracy, and human rights, before and after the Paris Treaty of 1973, the Communist rule was in serious violation of the following articles of the 1983 Constitution: Article 5 (national concord), Article 8 (bureaucracy, arrogance, and authoritarianism, Article 55 (equality before the law), Article 67 (freedoms of speech, of the press, of assembly in the interests of the people), Article 68 (freedom of religion), Article 69 (legal protection from physical violence, from all forms of coercion, and torture), Article 70 (protection by law with regard to life, honor and property), Article 71 (privacy of correspondence), Article 72 (to pursue literary, artistic, and other cultural activities), Article 73 (the right to lodge a complaint or denunciation regarding transgressions of law), Article 127 (the responsibilities of the People's Courts and People's Organ of Control to ensure respect for the lives, property, freedom, and dignity of the citizens, and Article 138 (observance of laws by organs of power).

Violations of the 1992 Constitution

With oppression and repression against all forms of aspirations for freedom, democracy, and human rights, before and after the promulgation of the 1992 Constitution, the Communist rule is in serious violation of Article 5 (discrimination among the nationalities, development of customs, practices, traditions, and cultures), Article 6 (use of the state power of the people), Article 50 (all human rights in the political, civil, economic, cultural, and social fields), Article 53 (the right of the citizen to participate in the administration of the State and society), Article 54 (the rights to vote and to stand for election to the National Assembly), Article 55 (labor right), Article 56 (labor safety), Article 57 (freedom to do business), Article 58 (the rights to ownership and inheritance), Article 59 (compulsory education), Article 68 (freedom of movement), Article 69 (the right to enjoy the freedom of speech and of the press, to inform and hold meetings, to establish associations), Article 70 (religious freedom), Article 71 (protection by law regarding life, health, honor, dignity, arbitrary arrest), Article 72 (no one can be considered guilty and be punished until a verdict of the court has legally come into effect), Article 73 (citizen's domicile are inviolable), and Article 74 (the right to lodge complaints).

Violations of Civil Rights

The 1992 Constitution of the Socialist Republic of Vietnam guarantees the basic civil rights of the citizen, the rights to religious freedom, freedom of speech, freedom of the press, and freedom of association. In practice, such freedoms are severely violated. A pervasive network of informants chills free speech considerably. The Party only tolerates criticisms of members, agencies, or organizations deemed to be corrupt or incompetent within its hierarchy. However, criticisms of the Party's role is not tolerated. Members within the hierarchy who question its role or criticize its policies are either isolated or banned whereas outsiders who do the same are subject to arrest and charged with crimes of "counterrevolution." The right of assembly, in particular, is restricted by law and in practice. People wishing to gather in a group are required to apply for permission, which can be issued or denied arbitrarily by local authorities. Demonstrations or meetings that could be seen as having a political purpose are not permitted and are often forcibly suppressed. Opposing organizations and activities are forbidden.

Regarding religious freedom, Vietnam has no state religion, and adherence to a religion is not permitted for party members. According to some estimates, nearly three-fourth of the population of 72 million people are Buddhist, but the government has claimed that only 6 million of them practice their religion. The Vatican believes that some 6 million Vietnamese are Catholics, and a much small number are Protestant. Virtually all foreign clergy remaining in the South in 1975 were expelled at the end of the year. The Socialist Republic of Vietnam has permitted visits by foreign clergy, but it has limited their activities within worship places and their dependent buildings. It often hindered their preaching and meetings with domestic clergy and followers.

The Decree 89/HDBT of March 31, 1991, as a case in evidence, seriously violates the freedom of religion in three major categories: 1) It tacitly negates the existence of the Churches as legal entities. It denies the existence of the Churches as legal entities as it does not accommodate any disposition defining the procedure for the formation of the Churches. It does not recognize the legal status of the Churches. 2) It places religious activities under the category requiring prior permission. It identifies religious activities under the category requiring permits and constraints that are more political than legal. 3) It violates the principle of separation of the Church and the State by systematic infringement on the internal affairs of the Churches since: a) it dictates prior registration of all activities of the Churches as long as one year ahead, and constrains all the activities of the Churches to be performed only at designated worship places; b) the formation and training of monks and priests, including the control of its personnel and the revision of the curriculum, must be approved by the State; c) ordinations and promotions of monks and priests must be approved by the Council of Ministers; d) the assignments and transfers of monks and priests must be approved by government authorities; e) monasteries and any form of collective religious practices must secure prior permission from the Council of Ministers;. f) charitable activities are allowed to conduct only in areas designated by the State; and g) individuals or religious organizations should request approval from the Council of Ministers if they are willing to receive purely charitable aid from foreign countries.

Concerning the freedom of expression and of the press, the government controls all broadcast media and does not permit the broadcast of opposing views. It controls radio and television stations, news agencies, magazines, newspapers, publications, and cultural exhibits. It violates Articles 67 and 71 of the 1992 Constitution that guarantee the rights to freedom of speech and communication. It violates Article 74 by refusing to take into consideration petitions by defendants and victims of injustice. It violates Article 4 (Clause 2), Article 71 (Clause 3), and Article 72 (Clause 1) when allowing the daily "Saigon Giai Phong" (Saigon Liberated) to condemn a suspect when he had not yet been tried by a court of justice. It violates Article 10 of the Criminal Procedural Code of the Socialist Republic of Vietnam when condemning a suspect when he has not yet been tried by a court of justice. It still violates many other articles provided by the Criminal Procedural Code. It violates 6 articles on the rights of defense (2, 34, 35, 36, 17, and 275) and Article 72 on temporary detention. It violates the law on the protection against violence, oppression, torture, respect of life, freedom, and the human person (Articles 50-70). Article 6 of the 1992 Constitution states that "the people exercise their powers through the National Assembly," and Article 130 of this constitution provides for the "independence" of judges and jurors. However, these rights are negated at all levels by a political system that is closely controlled by the Vietnamese Communist Party and by a selection process that puts a premium on political reliability. Article 50 declares that "in the Socialist Republic of Vietnam, all human rights in the political, civil, economic, cultural, and social fields are respected and manifested as citizens' rights stipulated in the Constitution and the law." However, it deliberately violates these "rights of the person." Among them are the freedom of religion, freedom of correspondence (Article 70); freedom of speech, freedom of information and of the press, freedom of assembly and of association, freedom of demonstration (Article 69); habeas corpus, that is, "any form of oppressive investigation, physical punishment or offense to the honor and human dignity of an individual are strictly forbidden (Article 71).

Violations of the Criminal Procedural Code

Due to the oppression and repression against human and civil rights, the Communist rule commits violations against the laws promulgated by itself. It is in serious violation of its Law on the Criminal Procedures promulgated on June 28,1988 and the Law on Amending and Supplementing Some Provisions of the Law on Criminal Procedures adopted by the National Assembly on June 30, 1990. Specifically, it violates Article 42.a (the defender's rights), Article 119 (illegal arrest, detention, and imprisonment), Article 120 (violation of the residence of a citizen), Article 124 (violation of the rights of the citizen to freedom of assembly, freedom of association, and freedom of religion), Article 217.2 (the defender's rights to participate in the hearing, appeal, or protest), Article 168 a (time limit for postponement of a court trial), and Article 215 a (decision to enforce, change, or cancel measures of restraint by a court at the preliminary trial level).

Doan Viet Hoat, in his report from prison, advocated that the Communist rule has breached its constitutional laws and legal documents promulgated or provisioned by the regime itself. The Criminal Procedural Code, as a case in point, is a body of laws that intentionally defines reasonable political activities and oppositions as crimes. Because of this, the Communist rule totally violates international conventions on civil and human rights. The crimes described in that body of law do not reflect, in concrete terms, elements that constitute a crime. Therefore, it fails to guarantee justice, the impartiality of the law, and the right of the citizen to object the unjust charges by the administration. The court procedures are both resilient and cumbersome, thus, creating loopholes for abuses of the law and the judicial system (Doan Viet Hoat, 1994).

The Criminal Procedural Code and subsequent amendments subscribe time limits on pretrial detention, the rights of the accused to be informed of the charges against him or her and to have a lawyer present during interrogation or at trial. In practice, however, the authorities frequently ignore these safeguards. Reports indicate that detainees continue to be held immunicado for indefinite periods without formal charges, with authorities using old administrative procedures in contravention of the new legislation. The retention and continued use of these administrative procedures appear to be deliberate government policy. Legislation designed ostensibly to prevent inordinate delays in charging suspects is often, if not routinely, and they are ignored in political cases. Many were held without formally charged with a crime. Its arbitrary arrest and unlimited detention violate its laws. It has arrested and detained its citizens arbitrarily and unlawfully. Article 71, Section 2 of the Criminal Procedure Code of the Socialist Republic of Vietnam stipulates that the temporary detention could take from 6 to 8 months, and this detention could only be extended due to national security.

The government continues to operate a nationwide system of surveillance and control through household registration and party-appointed block wardens who use informants to keep track of individual activities. The system is unevenly implemented throughout the country, and local caprice and corruption are significant factors in its application.

VIOLATIONS OF THE PARIS TREATY OF 1973

The Communist rule ruthlessly violated the South Vietnamese people's right to self-determination, which was proclaimed and defined by Article IV of January 27, 1973. Not only has Hanoi deprived the Vietnamese people of this right, it has also committed crimes against them through execution of innocent citizens, dispossession of their properties, and mass arrest of the Vietnamese from all backgrounds.

With its conquest of South Vietnam, imposition of communism, and oppression and repression against the Vietnamese people in South Vietnam, the Communist rule adamantly infringed on the Paris Treaty of 1973, January 27, 1973. Article 11 of this Treaty stipulated clearly that immediately after the cease-fire, the two South Vietnamese parties (The Republic of South Vietnam and the Front for National Liberation) will a) bring about national reconciliation and concord, put an end to hatred and enmity, ban all acts of reprisals and discrimination vis-à-vis individuals or organizations having collaborated with one or the other party; and b) ensure that basic freedoms are protected, such as freedom of the press, freedom of speech, personal freedom, freedom of assembly, freedom of organization, freedom of political activity, religious freedom, freedom of movement, freedom of residence, freedom of work, the right to private property, and the right to free enterprise. The Communist rule was also in serious violation of Article 8 of the Amnesty International Protocol to the Agreement on Ending the War and Restoring the Peace in Vietnam concerning captured military and civilian personnel of the Republic of Vietnam. This article specifically stipulates that "[All captured military personnel of the parties] shall be protected against all violence to life and person, in particular against murder to any form, mutilation, torture and cruel treatment, and outrages upon personal dignity. They shall be given adequate food, clothing, shelter, and the medical attention required by their state and health."

VIOLATIONS OF THE GENEVA CONVENTION RELATIVE TO THE PROTECTION
OF CIVILIAN IN TIME OF WAR

The Communist rule was in serious violation of Article 8 of the Geneva Convention relative to the protection of civilian persons in time of war, August 12, 1949, whereby "each party to the conflict shall be bound to apply, as a minimum," such provisions as "persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall, in all circumstances, be treated humanely" and "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as dispensable by civilized peoples."

VIOLATIONS OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

As a result of the absence of a rule of law, dispossession of justice, and despotic exercise of power, the Socialist Republic of Vietnam has seriously violated the principles as stipulated in the International Bill of Human Rights, the Covenant on Civil and Political Rights, and the Covenant on Economic and Cultural Rights.

Human rights are universal. They are true in all societies, to all the peoples on earth, and for all cultures of mankind. Only totalitarian regimes would pretend that human rights issues are internal affairs of a country, that only the administration of that country could stipulate the norms of human rights for the citizens which no other country should intervene, and that a country that forces another country to respect human rights infringes on the latter's internal affairs. The Universal Declaration of Human Rights was proclaimed in 1948. The International Bill of Human Rights, the Covenant on the Civil and Political Rights and the Covenant on Social, and Cultural Rights were proclaimed in 1966. The Socialist Republic of Vietnam, in particular, signed and pledged to abide by the International Bill of Human Rights in 1982. Its false arguments on human rights not only prove be a retrocession that goes adversely against humankind's progress but also denote a perfidious attitude toward the international community.

Nguyen Thanh Binh, the representative of the Socialist Republic of Vietnam at the Third Committee of the 42nd session of the United Nations General Assembly, took part in the debates on item 105 or the session's agenda concerning human rights and fundamental freedoms on November 6, 1987. She articulated a possible shift in her country's position regarding the observance of human rights: "We view that any approach taken in an attempt to divide human rights into separate aspects, civil and political rights on one hand, and economic, social, and cultural rights, on the other, will do more harm than good to the promotion of human rights." However, the Vietnamese Communist authorities, at both the central and local levels, have continued to severely restrict the rights to self-determination of the people, the rights of the citizens to change the form of government as well as all rights to freedoms. Worse still, they oppress and repress innocent citizens, intellectuals, journalists, writers, artists, political dissidents, and religious leaders.

Violations of the Fundamental Principles of Human Rights with Respect to Religious Freedom

The Socialist Republic of Vietnam violated the provisions of Article 18 of the Universal Declaration of Human Rights according to which "everyone has the right to freedom of thought, of conscience, and of religion." This right includes the freedom to change one's religion or belief, and the freedom, either alone or in community with others and in public or private, to manifest one's religion or belief in teaching, practice, worship, and observance. Therefore, the restrictions on the freedom of thought and all other prohibitions or restrictions, as well as the failure to determine the essentials of freedom, are undeniably violations of Article 18. It violated at least seven of the thirty provisions of Article 18 of the Universal Declaration of Human Rights, according to which "everyone has the right to freedom of thought, of conscience, and of religion." Other violations infringe on human rights concerning the rights to reason, conscience, and brotherhood (Article 1); the rights to life, liberty, and security of the person (Article 3); the freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media regardless of frontiers (Article 20); the rights to freedom of peaceful assembly and association according to which no one may be compelled to appertain to an association (Article 20).

Other Violations of Human Rights

Based on direct and secondary evidences of the persecution, oppression, and repression against the people of Vietnam as has been presented in this report, the Socialist Republic of Vietnam has seriously violated numerous articles of the Universal Declaration of Human Rights by which the Socialist Republic of Vietnam pledged to abide when it was admitted to the United Nations membership on September 29, 1977. They are: Article 5 (torture, inhumane or degrading treatment or punishment), Article 6 (recognition as a person before the law), Article 7 (equal protection by the law), Article 8 (rights granted by the constitution or by law), Article 9 (arbitrary arrest, detention, or exile), Article 10 (fair public hearing by an independent and impartial tribunal), Article 11 (the right to be presumed innocent until proven guilty), Article 12 (arbitrary interference with privacy), Article 13 (right to freedom of movement and residence), Article 17 (right to property), Article 19 (freedom of opinion and expression), Article 21 (right to take part in the government), Article 26 (right to education), and Article 29 (free and full development of personality).

VIOLATIONS OF INTERNATIONAL COVENANTS

Also, on the basis of direct and secondary evidences as has been presented in this report, the Socialist Republic of Vietnam has seriously violated the International Covenant on Economic, Social, and Cultural Rights and the International Covenant on Civil and Political Rights it signed on September 24, 1992. These two international covenants require those states that sign them or participate in them the obligations to comply.

A. Violations of the International Covenant on Economic, Social, and Cultural Rights

Article 4 of the 1992 Constitution of the Socialist Republic of Vietnam reserves the right to leadership of the Vietnamese Communist Party. This article infringes on Article 1 of the International Covenant on the Civil and Political Rights, that is, the rights of the people to choose a political regime. This right can be achieved only when truly free and fair elections are organized, noncommunist standpoints can be expressed, and noncommunist organizations can freely run for elections. There must be fair elections in which the people are free to choose between the Communist and noncommunist platforms. Such elections, in fact, have never existed under Communist Vietnam.

The Socialist Republic of Vietnam has seriously violated the following articles of the International Covenant on Economic, Social, and Cultural Rights: Article 1 (the right to self-determination of the people), Article 4 (promotion of the general welfare in a democratic country), Article 6 (recognition and realization of the right to work, Article 7 (the right of everyone to the enjoyment of just and favorable conditions of work), Article 8 (the right of trade unions to function freely), Article 10 (protection and assistance taken on behalf of all children), Article 13 (the right of everyone to education), 14 (compulsory education free of charge for all), and Articles 15 (freedom indispensable for scientific research and creative activity).

B. Violations of the International Covenant on Civil and Political Rights

The Socialist Republic of Vietnam has seriously violated the following articles of the International Covenant on Civil and Political Rights: Article 1 (freedom to choose political status and pursue economic, social, and cultural development, Article 2 (the right to claim effective judicial remedy), Article 5 (the rights to fundamental human rights), Article 6 (the right to life), Article 7 (the right to humane and decent treatment), Article 8 ( the right to be free from forced and compulsory labor), Article 9 (right to liberty and security of person), Article 10 (the right to be treated with humanity and with respect for the inherent dignity of the human person), Article 12 (the right to liberty of movement and freedom to choose residence), Article 14 (equality before the courts and tribunals), Article 15 (heavier penalty), Article 16 (the right to recognition as a person before the law), Article 17 (arbitrary or unlawful interference with privacy, family, home, or correspondence), Article 18 (the right to freedom of thought, conscience, and religion), Article 19 (freedom of expression), Article 22 (freedom of association), Article 25 (the right to take part in the conduct of public affairs), and Article 26 (equality before the law and equal protection of the law).