3 August 2015 – VIETNAM
A collection of 22 independent civil society organizations (CSOs) have delivered a strong rebuke of the new draft law on associations set for review at Vietnam’s National Assembly in October.
The independent CSOs’ joint statement points to an alarming number of areas, which would further infringe upon fundamental freedoms of association. In short, they contend that the draft law serves to further bolster the communist party’s stranglehold on civic spaces in the country. They contend that the primary function of the draft law is to enhance the government’s mandate to regulate, control, monitor, and manage civil society.
The joint statement highlights a number of clauses andarticles in the draft law that would further restrict the registration process and increase government control to the point that all independence would be lost.
Presently, independent civil society organizations, including the authors of this joint statement, are not allowed to register and must operate in a hostile environment that includes constant harassment and occasional violent attacks and arrest. The draft law, rather than solving such problems, would result in more of the same, solidifying a legal framework for preserving and upholding the unfriendly conditions that are already in place.
Notably, while independent groups, including all groups focused on human rights, are blocked from operatinglegally, the draft law also places certain groups and associations in a position of privilege. “There is a double-standard in the law. The Fatherland Front and other government-run organizations have one set of rules, and the rest of us have another”, says Huynh Thuc Vy, a signing author of the joint statement and coordinator of the independent CSO Vietnamese women for Human Rights (VNWHR).
This bias in the law comes as no surprise, as internal, regional, and international civil society engagement is already performed by a carefully managed regime of “GONGOs”, or Government Organized NGOs. Notes Huynh Thuc Vy, “This framework is a serious problem. While the government sends delegations abroad posing as civil society, they block us from participation. Just a few weeks ago they confiscated my passport and banned me from international travel.” The draft law, with its current language aims to “maintain the privileged status of these Communist Party organs.”
Interestingly, the draft law comes on the heels of UN criticism with respect to civic space in the country. In the concluding recommendations made by women’s rights UN treaty body CEDAW released just weeks ago, the committee of experts recommended that Vietnam investigate attacks on civil society actors and create a more open environment for civil society groups to operate freely. Vietnam is also more than a decade overdue on its formal UN review on ICCPR (International Covenant of Civil and Political Rights) implementation. It remains to be seen if the Vietnamese government will consider its status on treaty body implementation and related UN recommendations when the draft law comes forth at the National Assembly meeting.
Another critical point made in the joint statement is the linkage between laws of association and Vietnam’s law on religion. After concluding an official country visit, laws governing independent religious associations were strongly criticized by the UN Special Rapporteur on Freedom of Religion or Belief.
The letter concludes by calling for support for independent civil society from the international community. “We hope that the international media and NGO community will pressure Vietnam to develop a law on associations that is just and promotes space for truly independent associations”, notes Huynh Thuc Vy.
It remains to be seen how the government will respond to the joint statement. It is likely that the draft law, as it stands, will face serious scrutiny from the international community similar to that of Cambodia’s recent NGO law.
Click here to read the full CSO Statement [embed link]
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Joint Statement of Independent Civil Society Organizations (CSOs)
Regarding the Vietnamese Government’s Draft Law on Associations
August 2nd, 2015.
This joint statement was prepared by the CSOs listed below, the same CSOs that the Vietnamese government has prevented from operating legally through the denial of their registration applications.
I. First, we acknowledge that national laws’ clarity, completeness, and quality, and the capability for just and fair enforcement without favoring any element of society are vital to the guarantee and development of civil rights in the context of overall national development and ensuring the rule of law.
In addition, we offer this fundamental observation: A root cause of the absence of rule of law in Vietnam is the Constitution’s Article 4 that allows the Communist Party to dominate all State institutions and society, and the promulgation of laws, regulations, directives, etc. that aim to maintain the Party’s control but are incompatible with the international community’s democratic principles and respect for human rights.
As independent, voluntary and self-governing CSOs, we understand that laws that enable the government’s arbitrary interference with civil society activities will weaken CSOs’ operational effectiveness and impede citizens’ contributions to the formulation and implementation of national policies.
II. As representatives of independent CSOs that are among the victims of the government’s policy and measures directed at suppressing the exercise of the freedom of association, we resolved to overcome obstacles in order to submit input to the draft Law on Associations, a law that directly affects our rights and future.
Our views on the draft law are listed below. We request the government of Vietnam to delete or amend the following material because it is counter to the goal of respecting and protecting freedom of association and violates the principles underlying international treaties to which the government is a signatory.
As we understand it, “associations" include CSOs, clubs, cooperatives, NGOs, religious organizations, organizations based on occupation or gender, political parties, labor unions, and foundations. It follows that the law must treat the Vietnamese Communist Party as any other association, i.e., it must not enjoy any special privilege, particularly its current status as the sole political party with dominance over all other institutions. There should be no special law that applies to the Party.
Clause 2 of Article 1 excludes the Vietnam Fatherland Front, Vietnam Labor Union, Vietnam Farmers Union, Vietnam Communist Youth Union, Vietnam’s Women Union, and the Vietnamese Veterans’ Association from the law’s coverage. We suspect that the government intends to maintain the privileged status of these Communist Party organs. Furthermore, we are concerned about the future of unregistered religious organizations and ethnic minorities’ religious organizations because the draft law does not cover religious organizations.
2. "Permits" are barriers
Clause 3 of Article 2 would allow the government to issue specific regulations for unincorporated associations (without alegal personality). This would enable regulations, ordinances, and other administrative instruments that are technically subordinate to laws to suppress any nascent freedom of association. As a result, the draft law applies primarily to organizations that have a legal personality, i.e., organizations approved by the government.
The government fully intends to continue its policy of draconian, total control as evidenced in the draft law’s granting the government the right to promulgate regulations that are technically subordinate to laws, but would have the effect of abolishing or restricting civil rights acknowledged by the Constitution and the law.
Since the right to associate freely is guaranteed by the Constitution, any individual may start or join an association, and anyone who wants to establish an association needs only to register and declare the intention rather than applying for permits and having to wait for such permits. Consequently, to guarantee freedom of association, the draft should be stripped of all language implying that the law applies only to associationswith a legal personality and relegate those without a legal personality to subordinate regulations.
3. Arbitrary prohibitions
Article 8 specifies prohibitions, including “unlawful obstruction, coercion, or interference with the establishment, organization, and operation of an association” (Clause 1); “establishment or operation of an association in a manner that goes against the laws” and “infringes upon the legitimate rights and interests of the State, the community, organizations or individuals; or jeopardizes the national interest, sovereignty, or security, public safety, national solidarity, human rights, or citizens’ rights”(Clause 2).
The only purpose of Article 8 is to forbid the establishment and operation of independent organizations, human rights organizations, and opposition organizations, and to facilitate the government’s arbitrary accusation and conviction of those engaged in the establishment of independent associations. Besides, the vague language would allow the government broad latitude in interpreting and applying the law.
4. Infringements upon associations’ voluntary and self-governing principles
Articles 14 and 31 delineate the authority of the Interior (Home Affairs) minister and chairs of people’s committees at various levels with respect to approving associations’ bylaws and presiding officers, and are incompatible with the voluntary and self-governing principles specified in Articles 2 and 6.
5. Baseless restriction of the freedom of association
Part a of Clause 2 in Article 15 prohibits individuals from becoming members of an association if they are under a court ban on participation in association activities or a court ban on professional practice in the association’s key area of activity. This restriction of the right to associate is unfounded and contradicts Clause 3.
6. Turning associations into governmental appendages
Clause 2 of Article 25 specifies: "An association shall be subject to state management exercised by the agency authorized to regulate the association’s field of activities". We believe that associations are part of civil society, not part of the public sector, and therefore not subject to regulation and management by agencies assigned to the organizations’ fields of activities as specified in Clause 2 of Article 25. This clause would de facto transform a CSO into a governmental appendage.
7. Impeding the establishment of independent associations
Clause 6 of Article 9 specifies one of the requirements pertaining to the approval of a new association, "the number of individuals registering to join must meet the government’s minimum requirement”. This is a serious violation of freedom of association. If the government sets the numerical barrier too high, it will prevent the formation of small associations from the start.
Clause 3 of Article 9 specifies that the key areas of activity of a new association must not overlap with those of an existing association that is “lawfully” established. This is another instance of creating conditions to preserve the privileged position of government-sponsored organizations and preventing independent, unregistered organizations from operating in the same field of activities.
Clause 1 of Article 10 does not make sense because it requires government approval of the founding committee of an association. The founding committee is the driving force behind the establishment of the association. Should the government refuse to accept the committee, the establishment process is doomed from the start. The government would have the prerogative to squash any association attempt by human rights advocates or anyone who disagrees with the government.
8. About the title of the draft law
We suggest the replacement of “Law on Associations" with "Law on the Right of Association" for consistency with the spirit of Article 22 of the International Covenant on Civil and Political Rights, i.e., recognizing and protecting freedom of association. A draft law on associations that do not follow international principles on freedom of association would constitute a major setback for the establishment of the rule of law.
III. The preceding constitutes the views on the draft Law on Associations, a collective input of the independent CSOs that we represent. In the spirit of showing consideration for Vietnamese citizens’ input, we request that the responsible authorities respond by stating whether you agree or disagree with our views, and provide the rationale underlying your position.
Consistent with the Vietnamese government’s commitments expressed in international covenants, we will continue our activities and expand our associations, contribute to the building of the foundation for a civil society; work unceasingly to enable Vietnam to have a constitution that genuinely reflects the aspiration of the vast majority of Vietnamese, an impartial judicial system, and a government with three independent branches to ensure legislation and law enforcement that aretransparent, fair, and constitutional.
As things unfold, we hope that the governments of democratic nations, international NGOs, and the international media will continue to stand with us.
1) Vietnamese Women for Human Rights, represented by Huynh Thuc Vy, Tran Thi Hai and Tran Thi Nga
2) Bach Dang Giang Foundation, represented by Pham Ba Hai
3) Former Vietnamese Prisoners of Conscience, represented by Dr. Nguyen Dan Que and Rev. Phan Van Loi
4) Independent Journalists Association of Vietnam, represented by Dr. Pham Chi Dung
5) Religion and Ethnic Minorities Defenders, represented by Huynh Trong Hieu
6) Nguyen Kim Dien Priests group, represented by Rev. Nguyen Huu Giai
7) Brotherhood for Democracy, represented by Nguyen Van Dai
8) Vietnam-US Lutheran Alliance Church, represented by Pastor Nguyen Hoang Hoa
10) Vietnamese Political & Religious Prisoners Friendship Association, represented by Nguyen Bac Truyen
11) Chuong Bo Evangelical Protestant Church, represented by Pastor Nguyen Manh Hung
12) Association of Bau Bi Tuong Than, represented by Nguyen Le Hung
13) Civil Society Forum, represented by Dr. Nguyen Quang A
14) Delegation of Vietnamese United Buddhists Church, represented by the Ven. Thich Khong Tanh
15) Saigon Newspapers, represented by Rev. Le Ngoc Thanh
16) Hoa Hao Buddhists Church, Purity, represented by Nguyen Van Dien
17) Bloc 8406, represented by Rev. Phan Van Loi
18) Bauxite Vietnam, represented by Prof. Pham Xuan Yem and Prof. Nguyen Hue Chi
19) Association to Protect Freedom of Religion, represented by Ha Thi Van
20) Defend the Defenders, represented by Vu Quoc Ngu
21) Independent Caodaist Church, Tay Ninh, represented by Hua Phi, Nguyen Kim Lan, Bach Phung
22) Vietnam Bloggers Network, represented by Pham Thanh Nghie