After the 10-day eventful investigation of the religious tolerance condition in Vietnam in October, 1998, Mr. Abdelfattah Amor, the U.N. Sepecial Rapporteur, submitted his official report on March 16, 1999.
Not only "major... obstacles were encountered in connection with private interviews and movements'' during his trip, Mr. Amor expressed grave concerns over the legal framework set up by the Vietnamese authorities to control and suppress any religions at will in Vietnam.
The day after the announcement of the report, Hanoi slammed the document as "lacking objectivity and goodwill". It even promised to stop accepting "any foreign individual or organisation that wishes to travel to Vietnam to carry out investigations into religious or human rights issues''
Following is an excerpt from Mr. Amor's report, describing the layers of laws, decrees, and directives that have overshadowed the freedom of religions in Vietnam. The full report is posted at our web site: www.fva.org
CIVIL AND POLITICAL RIGHTS, INCLUDING THE QUESTION OF RELIGIOUS INTOLERANCE
Report submitted by Mr. Abdelfattah Amor, Special Rapporteur, in accordance with Commission on Human Rights resolution 1998/18
I. LEGISLATION IN THE FIELD OF TOLERANCE AND NON-DISCRIMINATION BASED ON RELIGION OR BELIEF
A. Constitutional provisions and the Special Rapporteur's concerns
8. Freedom of religion or belief is guaranteed by article 70 of the Constitution of 15 April 1992 in the following terms: "The citizen has the right to freedom of belief, of religion, to embrace or not to embrace any denomination. Religions are equal before the law. The places reserved for the worship of the various beliefs and religions are protected by the law." However, this same article 70 also provides as follows: "It is forbidden to violate freedom of belief, of religion, or to take advantage of it to act against the law or the policies of the State."
9. The Special Rapporteur has some queries about this provision, which establishes the principle of the priority of the policies of the State, a vague and extendable concept that could be potentially restrictive of religious freedom and its manifestations. This concern proves to be quite legitimate when, in connection with the policy of the State and its impact on freedom of religion, reference is made to article 4 of the Constitution, which states that "The Communist Party of Viet Nam ... following Marxism-Leninism and the thought of Ho Chi Minh, is the guiding force of the State and of society". These two articles, by their wording and their association, are likely to impede freedom of religion or even reduce it to very little indeed.
10. Lastly, there are concerns about the transposition of freedom of religion or belief, as guaranteed by the Constitution, into other legal provisions and, consequently, about the protection of this fundamental right in the Vietnamese legal system as a whole.
B. Other legal provisions and the Special Rapporteur's concerns
1. Decrees
11. There are two decrees that directly or indirectly relate to freedom of religion or belief, namely, Decree No. 69/HDBT of the Council of Ministers of 21 March 1991 on the regulation of religious activities and Government Decree No. CP/31 on administrative detention.
(a) Decree No. 69/HDBT
12. Articles 1 to 4 and 6 of this Decree guarantee freedom of religion and belief and the principle of non-discrimination based on religion or belief. The Special Rapporteur is, however, concerned about article 5, which stipulates some very vague reservations to freedom of religion such as "any activity using religion to sabotage national independence, oppose the State, sabotage the policy of uniting the whole people, undermine the healthy culture of our nation or prevent the faithful from carrying out their civic duties". Article 7 guarantees religious activities, but, like articles 70 and 4 of the Constitution, raises some questions about the priority given to "policy lines" and "ideological education". While article 8 provides that certain religious activities are not subject to government authorization, i.e. "ordinary activities within places of worship (such as prayer meetings, ceremonies, sermons and teaching catechism ...) in accordance with the religious customs of the region", it specifies that these activities, which are incidentally rather limited, must be programmed and registered every year.
13. All other religious activities, which are very diverse and numerous, are subjected to the authorization of the Provincial People's Committee or of a corresponding administrative body, or even of the Council of Ministers (arts. 9 et seq.), including diocesan priests' retreats and retreats for regular clergy from various orders among the Catholics, periods of meditation and fasting for Buddhist monks (art. 9), periodic conferences, national meetings of religious organizations (art. 10), repair or enlargement work changing the architecture of religious buildings (art. 11), charitable organizations, which have to operate within the guidelines of the competent State organs (art. 16) and the opening of religious schools (art. 17). Moreover, according to article 18, in the training schools for ecclesiastics and monks, the authorities reserve the right to verify the quality of the staff and monitor the teaching and ideological education.
14. Article 14 guarantees freedom to print religious books and to produce or import religious cultural works and objects used in worship, in accordance with the rules established by the State concerning printing and publishing and the production and importation of cultural works. The obligation to have recourse to State printing houses could have the potential result of censorship control.
15. Under articles 19 et seq., the ordination of ecclesiastics at all levels is subject to the approval of the authorities (the Provincial People's Committee or, in the case of the highest dignitaries such as cardinals and archbishops, the Council of Ministers). According to article 19, religious congregations (or similar forms of collective religious life) must request the permission and obtain the authorization of the Council of Ministers or of the organization appointed by the Council in order to become active.
16. Articles 23 et seq. establish, inter alia, that priests and religious personnel ordained and appointed by religious organizations abroad must be approved by the Council of Minsters and that individuals and religious organizations within the country must ask the authorities' permission before implementing guidelines coming from religious organizations abroad.
(b) Decree No. CP/31
17. Article 1 of this Decree defines administrative detention as an administrative measure to punish persons who break the law, namely, according to article 2, those who contravene national security, as defined in chapter 1 of the Penal Code.
18. This Decree makes it possible to force the persons concerned to live and work without leaving the place determined by the authorities and subjects them to the monitoring and direction of the people and of the local authorities. It thus gives authorization to place persons under police surveillance, report on their activities and put them into "administrative detention" without a court decision.
19. The Special Rapporteur has expressed his concern at the extraordinary powers conferred on the security services with regard to citizens, who can be deprived of their freedom for offences which give rise to serious reservations as to wording and content. Such offences could cover religious activities that are fully legitimate under international law (see subsect. 3 below on the Penal Code).
2. Directives
20. There are three directives that deserve particular attention: Directive No. 379/TTg of 23 July 1993 and Directive No. 500 HD/TGCP of 4 December 1993 on religious activities and the directive of 2 July 1998 on religion.
(a) Directive No. 379/TTg
21. This Directive provides that places of worship borrowed by the authorities must be returned to the churches or their owners when their use is no longer justified. It recalls that authorization to print religious books must be given in accordance with the Publications Act. It specifies that: "The censorship of religious productions must be carried out rapidly, in accordance with the formalities provided for by the law". As for the training of religious personnel, conditions are set forth, including the "importance of selecting persons who have fulfilled their civic duty perfectly". The Directive emphasizes, once again, the obligation of the various religions to notify the authorities of the programme of their religious activities in order to have them approved and receive government assistance to carry them out. It also calls for the strengthening of the political bodies in the provinces and towns dependent on the central power and for the multiplication of senior staff capable of carrying out research and managing religious activities.
(b) Directive No. 500 HD/TGCP
22. This text repeats the provisions on places of worship contained in Directive No. 379/TTg. It specifies that the Ministry of Culture and Communications will designate the houses empowered to publish prayer books and religious works. Strengthening Directive No. 379/TTg with respect to the training and ordination of religious personnel, it sets the effective fulfilment of civic duties as the main criterion for the selection of candidates. It also states that "in an educational spirit and by means of persuasion, an attempt will be made to impede violations of the law and the political line by certain members of the clergy"; "those who exploit religion and commit such violations with perverse intention must be severely judged in accordance with the law"; and "those who slander or distort the truth will be severely punished".
(c) Directive of 2 July 1998
23. This directive recognizes religious belief as a spiritual need for part of the population. It stipulates that the religious policy of the Party and State is one of unwavering respect for the people's freedom of belief. It briefly describes the principles and policy lines of the Party and State regarding religion, which include freedom of religion and belief; the principle of non-discrimination based on religion or belief; the obligation for all religious activities to observe the Constitution and the laws, protect the interests of the Vietnamese socialist party and maintain national independence and sovereignty; and the role of the Party sections, local authorities, Patriotic Front of Viet Nam, associations and social and religious organizations in mobilizing the people and in the correct application of the religious policy of the Party and State. The directive announces the preparation of an order relating to religion, a project on the establishment of a printing house for the prayer books and cultural works of the various religions and the publication of a magazine for use in religious studies, guidance and continuing education in the field of religion.
3. Penal Code
24. The Penal Code, which was adopted on 27 June 1985, entered into force on 1 January 1986; it was amended on 28 December 1989, 12 August 1991 and 22 December 1992 and revised in 1997.
25. Article 1 states:
"The purpose of the Penal Code is to protect the socialist system and to exercise control over collective socialism, to guarantee equal rights for all nationalities, to protect the citizens' lawful rights and interests and to preserve the socialist legal order against any criminal acts, while educating the people to observe the laws in order to combat and prevent crime."
26. Chapter 1 on "national security" provides for heavy penalties (life prison terms, death penalty) for particularly vaguely worded offences (art. 73. Activities aimed at overturning the power of the people: any person carrying out activities or founding or participating in an organization with the intention of overturning the power of the people; art. 74. Espionage: provision of information and documents bearing no relation to State secrets to a foreign Power; art. 81. Attempt to undermine national unity: promoting division between religious believers and non-believers; art. 82. Propaganda against the socialist system) for wrongful acts under international law and for the legitimate exercise of rights and freedoms recognized by the Constitution of Viet Nam and international human rights standards.
27. In this connection, it should be recalled that in the report on its mission to Viet Nam (E/CN.4/1995/31/Add.4 of 18 January 1995), the Working Group on Arbitrary Detention stated that "... the characterizations of offences as crimes against national security, as defined in article 73 of the Penal Code, draw no distinction on the grounds of the use or non-use of violence or of incitement or non-incitement to violence [...] the present wording of article 73 is so vague that it could result in penalties being imposed not only on persons using violence for political ends, but also on persons who have merely exercised their legitimate right to freedom of opinion or expression" (para. 58).
28. Other offences characterized by the Penal Code show the same deficiencies:
(a) Article 205 (a). "Misuse of democratic rights aimed at undermining the interests of the State, social organizations or citizens: misuse of freedom of speech, the press and religion or wrongful use of the rights of assembly, association or other democratic rights"; it should be noted that the concept of misuse cannot always be objectively assessed;
(b) Article 199. "Exercise of superstitious practices: any person who practises divination, acts as a medium or pursues other superstitious practices"; it should be noted there is no attempt whatsoever to define the concept of superstition;
(c) Article 198. "Disturbing the peace: anyone who disturbs the peace in a public place"; no information is provided on this vague and extendable concept;
(d) Article 215. "Violation of the rules governing publication and distribution of books, newspapers and other printed material". It seems, however, that these provisions are used as major obstacles to the exercise of religious activities (see chap. III - Situation of the religious communities in the field of religion and belief).
29. When told of the Special Rapporteur's concerns about constitutional and other legal and statutory provisions and provisions of international law (including the International Covenant on Civil and Political Rights and the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief), the Deputy Director of the Ministry of Justice stated that the Vietnamese legal system gave priority to international law whenever domestic provisions were contrary to international standards or were lacking.
30. Replying to a question by the Special Rapporteur on the compatibility between international standards guaranteeing rights and Vietnamese legal machinery, which established the principle of authorization in respect of those rights, the representative of the Ministry of Justice said that Viet Nam was studying the question whether to retain the principle of authorization or to establish the principle of a simple declaration and was conducting the appropriate reviews aimed at bringing domestic legislation into line with international legislation if necessary. He noted that the National Assembly was studying the question whether to prepare an order relating to religion and that United Nations technical assistance would be appreciated.
31. In reply to the Special Rapporteur's questions about the use in Vietnamese legislation of vague and extendable concepts granting excessive discretionary powers to law enforcement officials, the Deputy Minister of Public Safety explained that the legislation clearly provided for freedom of religion and belief and stressed that the law had to be respected by all, including the police. In particular, he considered that the provisions of the Penal Code, especially article 73, were sufficiently clear.
32. The representatives of the Institute of Research into Religion said that the Constitution clearly guaranteed freedom of religion and was consistent with international law, although they did say that some articles might be amended.