The Truth about the Abolition of the Administrative Detention Decree 31/CP of 4/14/1997
By Lawyer Le Thi Cong Nhan
Ha Noi, 11-11-2006
Legal professional and others involved in the fight for democracy in Vietnam are encouraged by the news that the communist government plans to abolish Administrative Detention Decree 31/CP of 4-14-1997. Decree 31/CP was applied to persons deemed to be violators of the national security laws as defined in Chapter I but whose violation was “not severe enough to be criminally prosecuted” (Article 2). Decree 31/CP was used especially against democracy activists who worked for freedom, human rights, and a pluralist, civilized political system for Vietnam.
The Vietnamese communist authorities denounce democracy activists accusing them of “acting against the national security “with such “crimes” as opposition to the state policies, anti-revolutionary propaganda, abuse of democracy, security disturbances, insolence toward leaders, etc.. Repressive measures are then applied, including arrest, interrogation, forced discharge from employment, imprisonment, house arrest, etc.. As we all know, house arrest is one of the most abusive and casual measures taken against democracy activists.
House arrest has been defined by the Vietnamese communist authorities as merely an administrative measure !?!? It means a legal process is not needed as in a formal case. Officials could instantly put an individual who has been denounced for “violating the national security “ under house arrest for 6 months to 2 years (Art. 1). Decree 31/CP’s most dangerous and obscure feature was the phrase “not severe enough to be criminally prosecuted” in which the level of severity was not clearly defined. The obscurity was intentional and allowed the authorities to apply the law against anyone for “violating national security” without that person being brought to court. Therefore, house arrest has always been the first choice to deal with dissidents because it allowed the Vietnamese communist authorities to avoid judging them in public.
Many peaceful, non-violent democracy activists became the victims of administrative house arrest and were forced to live in their own prison residences for many years. They had to provide a “legitimate reason” if they needed to go somewhere, or turn in a request and wait until an “authorization” was issued (Art. 17). Nothing is mentioned in Decree 31/CP about what a legitimate reason should be and in what circumstances the authorizations should or should not be issued. The restrictions applied only to the citizens insofar as the spirit of the law was to serve the authorities’ interest and convenience only.
One may wonder what the relationship between the title of the article and its content is, as only an analysis of the basic content of Decree 31/CP has been presented so far. The clarification is Decree 22/NQ-CP that was made at a monthly meeting of the Vietnamese communist authorities in August 2006. Its announcement on 9-5-2006 stirred public opinion in and out of Vietnam. Its Article 5 states:
“5. The government was informed by the Minister of Justice of the abolition of administrative house arrest and annulment of Governmental Decree 31/CP of 4-14-1997 on the same subject.
As part of the process of building a juridical socialist Vietnam and integrating with the world, the government thinks it necessary to abolish administrative house arrest and annul Decree 31/CP. To provide a legal basis for the implementation, the Minister of Justice, by order of the Premier and on behalf of the government, will request the Standing Committee of the National Assembly to issue a decree to abolish or postpone the application of a number of articles and sections related to administrative house arrest specified in the Decree on Administrative Violations of 2002. On that basis, the Decree 31/CP is now abolished.
It is perhaps not necessary to elaborate on progress made by the Vietnamese communist authorities in rectifying errors they committed in the past as mentioned in Article 5 above but do they really want to do it? The answer is no, simply because Decree 31/CP actually ceased to be applied as of 10-1-2002 when it was replaced by the 2002 Administrative Violations Decree.
We all know about the effectiveness of Decrees, which is only below that of the Constitution and the Law. As for implementation, the time principle rules that in a case where there are two or more laws on the same issue, the valid one is the most recent. Therefore, the Administrative Violations Decree ranks higher in importance and exists more recently than Decree 31/CP. In fact, the whole set of provisions on house arrest in Decree 31/CP has been inserted in the 2002 Decree in a “smoother, sharper, and more concise form.” It still retains its awful content, namely the following:
Article 6, section 2 states: “Other aspects of the administrative measures are those mentioned in Articles 23, 24, 25, 26 and 27 of this Decree.”
Article 22 determines other administrative measures including education in villages and towns, transfer to boarding schools, to education institutions, to medical institutions, and administrative house arrest.
Article 27 determines that Chairmen of provincial people’s committees have the power to decide against those violators of the national security laws whose crimes are not severe enough to be criminally prosecuted. The length of the administrative house arrest is between 6 and 24 months.
Decree 31/CP’s administrative house arrest has been revised with a higher level of efficiency when it was inserted in the Decree. In addition, the measures of sending to education institutions (Art. 25) and to medical institutions (Art. 26) were also inserted in the new Decree with a larger scope of application. These two measures are actually forms of repression widely used by the Vietnamese communist authorities against democracy activists. The term education institutions actually implies prisons. They do carry out some kind of reform for bad elements but they have been abused by the Vietnamese communist authorities to suppress dissidents. Subjects of the medical institutions are supposed to be drug addicts and prostitutes, but in reality they are dissidents who are treated as mental patients in order to make these sane victims permanent invalid.
Therefore, if the Vietnamese communist authorities say that “the abolition of the administrative house arrest and annulment of Decree 31/CP are necessary” then they must abolish all laws related to administrative house arrest, not just abolish a decree that has been “dead” a long time!!!
The truth is the Vietnamese communist authorities have simply killed Decree 31/CP of 4-14-1997 “a second time”. Their real goal is no doubt widely understood by everyone. At present, Decree on Administrative Violations 2002, Decree 38/CP of 3-18-2005 on assemblies and Decree 56/CP recently born on 6-6-2006 about culture and information are more sophisticated and completely effective against democracy activists. House arrest, a beautiful term for residential imprisonment, is still entirely effective as a result of the Decree on Administrative Violations 2002.
If the Vietnamese communist National Assembly in 1991 abolished the “Order of collective reeducation” that kept victims 3 years in prison per order (until 1991, many victims remained in jail 15 years consecutively on 5 orders), then with the Decree on Administrative Violations 2002, the Vietnamese communist authorities have reinstated at will the “Order of collective reeducation” under the guise of “transfer to an education institution from 6 to 24 months”.
Democracy activists and public opinion, therefore, should have a full and precise acknowledgement of the tricks played by the Vietnamese communist authorities.
[Translated from Vietnamese by VNHRN]
Vietnam Human Rights Network