Democracy Digest, August 4, 2017
Vietnam has retreated in a high-stakes maritime gambit against China, suspending a gas-drilling project that it had approved in the South China Sea but that was said to have irritated Beijing, according to The New York Times. The news coincides with reports that Vietnam has provoked a diplomatic row with Germany over the apparent abduction of a former Vietnamese oil executive from Berlin. The case suggests that Hanoi is taking a cue from other authoritarian regimes’ cross-border abductions in violation of international law. Yet growing social unrest, combined with a sudden increase in the persecution of dissidents by the authoritarian one-party state, is highlighting tension between citizens and state that threaten to undermine a coherent response to the China threat, argues Dr. Cu Huy Ha Vu (right), a leading dissident, constitutional scholar and legal advocate.
On April 15, 2017, thousands of farmers in Dong Tam Commune on the outskirts of Hanoi, Vietnam, detained 38 police officers and local government officials (above) who had been sent to crack down on them for opposing the government’s illegal seizure of their farmland in order to give it to a business owned by the defense ministry.
A week later on April 22, 2017, Hanoi People’s Committee Chairman Nguyen Duc Chung was forced to enter into a dialogue with residents of the Commune as a condition of detainee release, in which he made a written commitment to resolve their complaints, as well as to not prosecute them for capturing policemen and government officials. The detainees were immediately released.
This is an unprecedented political event in Vietnam, because this was the first time citizens were able to detain a considerable number of officers and officials and moreover, in the capital. Indeed, exactly 20 years before, in May-June 1997, thousands of farmers in Thai Binh province revolted against corrupt local governments. They smashed the district police headquarters, attacked with stone and bricks security forces that were equipped with water cannons and police dogs, and hunted corrupt commune officials. In Quynh Hoa commune, the People’s Committee Chairman and Communist Party Secretary were tied up and forced to walk in the rain.
Many observers inside and outside Vietnam, including lawyers, whether they support the Dong Tam residents’ action or not, contend that the residents of the Commune committed a “crime of resisting persons in the performance of their official duties.” U.S. media and other countries’ media described the event as “holding police hostage.”
To the contrary, I would argue that the Dong Tam people are not criminals because their action was a “legitimate defense” under Article 15 of the Vietnam Penal Code, which stipulates: “Legitimate defense is an act of persons who, for the purpose of protecting the interests of the State and/or organizations, as well as the legitimate rights and interests of their own or other persons, need to fight against persons who are committing acts infringing upon the interests of the above-mentioned. Legitimate defense is not a crime.”
Thus, anyone who sees an act that is occurring or threatens to occur at risk of infringing the legitimate rights (life, health, property …) of oneself or anyone else has the right to use force to neutralize it, regardless of owner. Likewise, any other behavior that has clear indication of contributing to an act that is dangerous to society is subject to “legitimate defense”.
Until the events in April, the Hanoi People’s Committee had not completely resolved the complaints of the Dong Tam people or guided these citizens to file a lawsuit in court under the Administrative Litigation Law. This means that the authorities had no legal basis to determine whether or not the Dong Tam people were farming their land illegally. Therefore, the coercive seizure of land by the Hanoi People’s Committee was completely unlawful and, accordingly, the famers’ opposition was legitimate. In other words, the police officers and local government officials sent to suppress the Dong Tam people were committing an illegal activity.
After the police arrested four of the Dong Tam farmers, the Commune had no choice but to use its right to “legitimate defense” by detaining the above-mentioned officers and officials. For this reason, the Dong Tam people’s action was not an act constituting a “crime of resisting persons in the performance of their official duties” or a “crime of illegal arrest, custody or detention of people.” This also rejects the view that the Dong Tam people’s action was a “hostage-taking”. Indeed, “hostage” applies only to a detained person who did not commit any unlawful acts or infringe upon the interests of others.
This point of view has been presented by this author in two articles on the Dong Tam event published by BBC Vietnamese on June 3 and June 11, 2017.
On June 13, 2017, Hanoi Police initiated a criminal case against the Dong Tam people under Article 123 of the Penal Code (Crime of illegal arrest, custody or detention of people). The Hanoi government’s about-face on its commitment to these farmers has two main goals:
First, to terrorize the Dong Tam people so that they stop lodging complaints, thus ensuring the seizure of their land by the government for interest groups.
Second, to deter the Dong Tam people, in particular, and the Vietnamese people in general, from using “legitimate defense” as provided by the Vietnamese Penal Code, meaning the use of force to counteract any government suppression.
The two objectives of the criminal case instituted against the Dong Tam people reflect the increasingly difficult relationship between Vietnamese society and the Communist regime. This friction is a result of the widespread illegal seizure of land from the people by corrupt central and local government officials, leading to growing resistance by citizens.
Under Article 53 of the Vietnamese Constitution, “the land is collectively owned by all citizens and is managed by the State, which represents the owners.” In practice, the land is state- owned property and the people are merely tenants, meaning that the government can seize any property at any time. It should also be recalled that the policy of “land owned by all citizens” came into being after the Communists took over what was South Vietnam in 1975. This policy was specifically enshrined in the 1980 Constitution. This law points out that private ownership of land through the policy of “agricultural land goes to farmers”, passed the Communist government prior to the unification of Vietnam, was just a ploy to get farmers, who represented 90 percent of the population at that time, to fight on the side of the Democratic Republic of Vietnam (DRV) – the Hanoi-based Communist government – against the French and later the United States.
Privatization and urbanization that followed Vietnam’s shift to a market economy in 1986 due to the collapse of the Marxist centrally planned economy has turned land into a property of special value. Foreign investment has also contributed to a hike in land prices. Indeed, the government leases land to foreign companies or provides land as capital in joint ventures. This explains why the government has been striving to take the land from the people for little or no compensation to give to interest groups. For instance, the Hanoi government recently seized the land of residents in Duong Noi Ward for VND 201,600 per square meter, then sold it for VND 35,000,000 per square meter. In a nutshell, for Vietnamese authorities land has become a commodity that brings super profits. In other words, the only fitting classification for Vietnam’s type of government is “kleptocracy.”
Experience shows that government repression enhances the people’s opposition, which could undermine national unity when the country is facing threats from China, especially in the South China Sea. Consequently, removing Article 53 on state-ownership of land-from the Constitution in particular, and amending the Constitution to facilitate economic privatization and political liberalization in general, would be the best way for the Vietnamese government to successfully defend the country’s national interests as well as to be actually a “government of the people, by the people and for the people” as stipulated by the Constitution.
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August 11, 2017
Vietnamese farmers’ protests are “legitimate defense” against ruling kleptocracy
by Nhan Quyen • [Human Rights]
Democracy Digest, August 4, 2017
Vietnam has retreated in a high-stakes maritime gambit against China, suspending a gas-drilling project that it had approved in the South China Sea but that was said to have irritated Beijing, according to The New York Times. The news coincides with reports that Vietnam has provoked a diplomatic row with Germany over the apparent abduction of a former Vietnamese oil executive from Berlin. The case suggests that Hanoi is taking a cue from other authoritarian regimes’ cross-border abductions in violation of international law. Yet growing social unrest, combined with a sudden increase in the persecution of dissidents by the authoritarian one-party state, is highlighting tension between citizens and state that threaten to undermine a coherent response to the China threat, argues Dr. Cu Huy Ha Vu (right), a leading dissident, constitutional scholar and legal advocate.
On April 15, 2017, thousands of farmers in Dong Tam Commune on the outskirts of Hanoi, Vietnam, detained 38 police officers and local government officials (above) who had been sent to crack down on them for opposing the government’s illegal seizure of their farmland in order to give it to a business owned by the defense ministry.
A week later on April 22, 2017, Hanoi People’s Committee Chairman Nguyen Duc Chung was forced to enter into a dialogue with residents of the Commune as a condition of detainee release, in which he made a written commitment to resolve their complaints, as well as to not prosecute them for capturing policemen and government officials. The detainees were immediately released.
This is an unprecedented political event in Vietnam, because this was the first time citizens were able to detain a considerable number of officers and officials and moreover, in the capital. Indeed, exactly 20 years before, in May-June 1997, thousands of farmers in Thai Binh province revolted against corrupt local governments. They smashed the district police headquarters, attacked with stone and bricks security forces that were equipped with water cannons and police dogs, and hunted corrupt commune officials. In Quynh Hoa commune, the People’s Committee Chairman and Communist Party Secretary were tied up and forced to walk in the rain.
Many observers inside and outside Vietnam, including lawyers, whether they support the Dong Tam residents’ action or not, contend that the residents of the Commune committed a “crime of resisting persons in the performance of their official duties.” U.S. media and other countries’ media described the event as “holding police hostage.”
To the contrary, I would argue that the Dong Tam people are not criminals because their action was a “legitimate defense” under Article 15 of the Vietnam Penal Code, which stipulates: “Legitimate defense is an act of persons who, for the purpose of protecting the interests of the State and/or organizations, as well as the legitimate rights and interests of their own or other persons, need to fight against persons who are committing acts infringing upon the interests of the above-mentioned. Legitimate defense is not a crime.”
Thus, anyone who sees an act that is occurring or threatens to occur at risk of infringing the legitimate rights (life, health, property …) of oneself or anyone else has the right to use force to neutralize it, regardless of owner. Likewise, any other behavior that has clear indication of contributing to an act that is dangerous to society is subject to “legitimate defense”.
Until the events in April, the Hanoi People’s Committee had not completely resolved the complaints of the Dong Tam people or guided these citizens to file a lawsuit in court under the Administrative Litigation Law. This means that the authorities had no legal basis to determine whether or not the Dong Tam people were farming their land illegally. Therefore, the coercive seizure of land by the Hanoi People’s Committee was completely unlawful and, accordingly, the famers’ opposition was legitimate. In other words, the police officers and local government officials sent to suppress the Dong Tam people were committing an illegal activity.
After the police arrested four of the Dong Tam farmers, the Commune had no choice but to use its right to “legitimate defense” by detaining the above-mentioned officers and officials. For this reason, the Dong Tam people’s action was not an act constituting a “crime of resisting persons in the performance of their official duties” or a “crime of illegal arrest, custody or detention of people.” This also rejects the view that the Dong Tam people’s action was a “hostage-taking”. Indeed, “hostage” applies only to a detained person who did not commit any unlawful acts or infringe upon the interests of others.
This point of view has been presented by this author in two articles on the Dong Tam event published by BBC Vietnamese on June 3 and June 11, 2017.
On June 13, 2017, Hanoi Police initiated a criminal case against the Dong Tam people under Article 123 of the Penal Code (Crime of illegal arrest, custody or detention of people). The Hanoi government’s about-face on its commitment to these farmers has two main goals:
First, to terrorize the Dong Tam people so that they stop lodging complaints, thus ensuring the seizure of their land by the government for interest groups.
Second, to deter the Dong Tam people, in particular, and the Vietnamese people in general, from using “legitimate defense” as provided by the Vietnamese Penal Code, meaning the use of force to counteract any government suppression.
The two objectives of the criminal case instituted against the Dong Tam people reflect the increasingly difficult relationship between Vietnamese society and the Communist regime. This friction is a result of the widespread illegal seizure of land from the people by corrupt central and local government officials, leading to growing resistance by citizens.
Under Article 53 of the Vietnamese Constitution, “the land is collectively owned by all citizens and is managed by the State, which represents the owners.” In practice, the land is state- owned property and the people are merely tenants, meaning that the government can seize any property at any time. It should also be recalled that the policy of “land owned by all citizens” came into being after the Communists took over what was South Vietnam in 1975. This policy was specifically enshrined in the 1980 Constitution. This law points out that private ownership of land through the policy of “agricultural land goes to farmers”, passed the Communist government prior to the unification of Vietnam, was just a ploy to get farmers, who represented 90 percent of the population at that time, to fight on the side of the Democratic Republic of Vietnam (DRV) – the Hanoi-based Communist government – against the French and later the United States.
Privatization and urbanization that followed Vietnam’s shift to a market economy in 1986 due to the collapse of the Marxist centrally planned economy has turned land into a property of special value. Foreign investment has also contributed to a hike in land prices. Indeed, the government leases land to foreign companies or provides land as capital in joint ventures. This explains why the government has been striving to take the land from the people for little or no compensation to give to interest groups. For instance, the Hanoi government recently seized the land of residents in Duong Noi Ward for VND 201,600 per square meter, then sold it for VND 35,000,000 per square meter. In a nutshell, for Vietnamese authorities land has become a commodity that brings super profits. In other words, the only fitting classification for Vietnam’s type of government is “kleptocracy.”
Experience shows that government repression enhances the people’s opposition, which could undermine national unity when the country is facing threats from China, especially in the South China Sea. Consequently, removing Article 53 on state-ownership of land-from the Constitution in particular, and amending the Constitution to facilitate economic privatization and political liberalization in general, would be the best way for the Vietnamese government to successfully defend the country’s national interests as well as to be actually a “government of the people, by the people and for the people” as stipulated by the Constitution.