Countries at the Crossroads
Vietnam presents a number of paradoxes. It is an authoritarian state ruled by a party whose reach extends to almost every area of the Vietnamese government and society. At the same time, the party enjoys a fair degree of popular legitimacy, having overseen the unification of the country's warring sides, high rates of economic growth, and the development of a vibrant society whose members increasingly enjoy the benefits of a modern consumer economy. The Vietnamese Communist Party (VCP) and its associated organizations have time and again proved adept at reinvigorating themselves and the country in the face of crisis and failing institutions, often to the benefit of Vietnamese citizens. Through a combination of control over the media, domination of the judiciary, and repression of political dissent, the VCP remains firmly in command. Opposition parties remain illegal and the party-dominated government incarcerates those it deems threatening to the VCP's monopoly on political power. As Vietnamese society faces key challenges, including rampant corruption and rising land grabs, it remains to be seen whether the current system will be able to effectively meet the needs of an increasingly demanding citizenry, or if more fundamental change will be needed.
Vietnam's current government grew out of the reunification of the country in 1976 after the Communist-ruled north defeated a U.S.-backed regime in the south following more than a decade of fighting. Forced collectivization of agriculture and poor economic policies mired most Vietnamese in deep poverty. In the mid-1980s, the VCP launched a reform process officially referred to as Doi Moi (renewal). Over the last 20 years, reforms have delivered economic growth, jobs, and integration into the world economy, culminating in Vietnam's accession to the World Trade Organisation (WTO) in 2007. The economy has undergone far-reaching change, rendering it vastly more open and market oriented than a decade ago. Although the state still retains control over the "commanding heights"—primarily resource-based and public goods industries—its grip has loosened and a process of privatization is underway.
The provision of economic freedoms has not been accompanied by concomitant political reform. The upper echelons of the VCP have allowed a degree of enhanced openness in the face of new demands from society for accountable government and freedom of expression. However, this space remains within limited and sometimes arbitrary parameters defined by the party leadership, illustrating the contradictions and limitations on freedom in Vietnam. Thus, the government actively encourages the media to investigate and expose instances of corruption, but journalists may suffer retribution when their investigations are perceived to challenge the fabric of the VCP's power. Recent legislation clarified citizens' rights to practice their religious faith, and new denominations have been allowed to register. Nonetheless, the government maintains control over clergy appointments and religious organizations that wish to retain independence from the VCP-imposed framework are banned and their members put at risk of arrest. The National Assembly (NA) continues to move beyond its previous role as a simple rubber stamp entity, but citizens' efforts in 2006 and 2007 to form independent political parties, trade unions, and a journalists' society were throttled, with dozens of activists sentenced to long prison terms.
Vietnam is a one-party state in which the VCP is the only legally permitted political party. The party maintains hegemonic control over the government, with party members holding almost all top posts in government, the parliament, and the security forces, as well as in many economic entities and social organizations. The VCP is headed by a 15-member Politburo, which serves as the country's top decision-making body. The individuals holding the top two positions in government, the prime minister and president, serve simultaneously as senior members of the Politburo. Together with the VCP secretary general, they govern the country as a troika. The minister of public security, the defense minister, the chairman of the NA, and several deputy prime ministers are also concurrently members of the Politburo.
Politburo members are elected every five years at a party congress by the 160-person Central Committee, which includes party representatives from across the country and the state system. At the 10th Party Congress held in April 2006, Nong Duc Manh was reappointed as secretary general, a position he has held since 2001. Also emerging from the meeting were two new candidates for president and prime minister. Nguyen Tan Dung, a deputy prime minister, was chosen as the candidate for prime minister, and Nguyen Minh Triet, the former VCP chief for Ho Chi Minh City, was selected for president. In June 2006, the two appointments were formalized in a confirmation vote in the NA. Both officials were the sole candidates put forward for each position, with Triet winning 94 percent of NA votes and Dung receiving 92 percent. The carefully managed leadership transition represented a shift to a younger generation and the first time government has been headed by two southerners since 1975. As in past congresses, despite the formal discussions of the meeting, much of its practical significance emerged from such rotations of personalities, with their associated implications for access to patronage and political protection.
The 500-member National Assembly is elected every five years, more as an exercise to enhance the popular legitimacy of the VCP than to provide an avenue for meaningful public input into the selection of key government leaders. Although the VCP is the only political party permitted to compete in the polls, non-party members and "self-nominated" candidates are legally allowed to stand for election. There is universal suffrage and typically more than one candidate competing in each district, making the process more inclusive and competitive than in neighboring China. Nevertheless, the process is biased in favor of VCP candidates. In particular, all delegates are vetted through a complex and multilayered selection process headed by the Vietnam Fatherland Front (VFF), an umbrella organization closely aligned with the VCP.
Prior to the NA elections held in May 2007, the government publicly called for independent candidates to compete, and non-VCP members comprised approximately 25 percent of the total of 1,130 nominations. Through the vetting process, however, 254 nominees were disqualified, including a majority of non-VCP members. Several self-nominated candidates—including several figures in major cities who attracted significant press attention—withdrew from the ballot after apparent pressure from government and party officials. As a result, in the final count, approximately 10 percent of the 876 approved candidates were non-VCP members.
The campaigning process is tightly controlled and largely formalistic, with few critical remarks exchanged between candidates. In contrast to neighboring Cambodia or Thailand, elections in Vietnam are generally free of fraud and violence as there is little at stake and much of the progovernment bias occurs at the vetting stage. The government reported voter turnout at 99 percent, the result of legal requirements to vote and pressure on local officials to ensure maximum participation. Following the polls, of the 493 elected delegates, 450 were members of the CPV and 42 were non-CPV members, with just one self-nominated candidate elected. The overall ratio of VCP to non-VCP delegates was almost identical to that of the previous NA and closely matched targets named by the government-controlled National Assembly Standing Committee prior to the polls.
Though its authority remains circumscribed and VCP delegates are an overwhelming majority, over the past decade the NA has emerged as more than a rubber-stamp parliament. It functions as a vibrant body, capable of amending government-proposed legislation and demanding greater accountability from ministers. Among its 500 delegates, 140 are full-time members, while the remaining representatives attend plenary sessions twice a year. The two-week sessions are primarily focused on approving legislation that has already been analyzed and amended by the permanent members. The NA's proceedings are broadcast on radio and television, including televised sessions during which individual delegates query government ministers. Although this occurs within fairly strict parameters, the questions posed are largely unscripted and, in the context of Vietnam's political system, the process has allowed some measure of transparency and oversight of the executive. In March 2008, the NA passed a new Law on Lawmaking that, among other provisions, would make public consultation and impact assessment mandatory in any law-making process. The legislation technically came into effect in January 2009, but an implementing decree has yet to be issued to fully trigger its application.
At the provincial level, citizens elect local state bodies called People's Councils; candidates are vetted by the VFF. People's Councils then elect an executive body, the People's Committee, which is technically responsible for provincial policy. In practice, however, People's Councils are weaker than the other two provincial-level bodies, the Party Committee and the People's Committee, rendering their members little more than figureheads. The last People's Council elections occurred uneventfully in 2007.
The organization of political parties or civic movements calling for democratic reform remains outlawed. Citizens involved in such initiatives have been severely repressed in recent years. Previously, from 2004 to 2006, dissident activity flourished, with "an unprecedented number of political organizations" formed to advocate for greater democracy, respect for human rights, and religious freedom. These included the Vietnam Populist Party (Đảng Vì Dân) and the Democratic Party of Vietnam (Đảng Dân chủ Việt Nam), originally founded in 1944 and re-launched in 2006 as a loosely structured dissident organization. Also founded were the Committee for Human Rights in Vietnam, the Free Journalists Association of Vietnam (FJAV) and two independent workers' associations. In a bold move, on April 8, 2006, 118 individuals representing a diverse network of professionals issued a "Manifesto on Freedom and Democracy for Vietnam" calling for a multiparty system, independent media, freedom of assembly, and religious freedom. The document later came to be known as 8406 (a reference to the date when it was published), and those supporting it as Bloc 8406. By the end of the year, it had reportedly garnered over 2,000 signatures and participants had issued several follow-on statements proposing phased democratization.
The authorities' response to the mobilization was initially guarded, as Hanoi was the focus of international attention in hosting the Asia Pacific Economic Cooperation (APEC) forum in November 2006 and was about to gain entry to the WTO in early 2007. After the APEC summit, however, security forces initiated a systematic crackdown against the Bloc 8406 organizers and other prominent activists. During 2007 and 2008, over 20 individuals, including lawyers and Catholic priests, were sentenced to prison terms of up to eight years in what Human Rights Watch termed "one of the worst crackdowns on peaceful dissidents in 20 years."
Constitutionally, a system of checks and balances exist. In reality, however, the VCP retains significant influence over all branches of government. There are few formal constraints on its power, although there is contestation of party power at different levels of the state hierarchy. In recent years, the NA has rejected cabinet nominees, forced the government to amend legislation, and successfully demanded an increase in its powers, including the right to hold no-confidence votes against the government. The president, himself a member of the Politburo, proposes candidates for the Supreme People's Court, who are then confirmed by the NA; available evidence suggests that none have been rejected.
Although party membership is not a prerequisite for gaining civil service employment, most applicants tailor their answers on exams to reflect the party line. Selection is conducted through an open interview process and an annual exam that has been criticized as excessively academic. Informal criteria such as personal relationships also continue to play an important role in personnel decisions. Pilot projects, however, have sought to enhance the openness and transparency of the recruitment process, even as thousands of civil servants have transferred to the private sector in search of better working conditions in recent years. In 2008, the Ministry of Education opened one vice minister position to external candidates, and a number of state-owned enterprises in Ho Chi Minh City have extended their CEO searches to external candidates.
Although freedom of association remains highly controlled, among the most noticeable trends in Vietnam is the continued proliferation of nonprofit organizations, particularly at the grassroots level. In 2005, there were an estimated 140,000 community-based organizations, 3,000 cooperatives, 1,000 locally registered NGOs, and 200 charities. Also playing a dominant role in the nonprofit sector are 22 mass organizations acting under guidance from the VFF and the VCP. These groups engage in a range of issues on behalf of various segments of the population, though the degree of genuine representation of members' interests, as opposed to serving as a means of maintaining VCP social control, remains ambiguous. The largest group is the Viet Nam Women's Union, with a membership of over 12 million. Other prominent organizations include the Ho Chi Minh Communist Youth Union, the Vietnam Youth Federation, the Farmers' Union, the Veterans Union, the Association for Buddhism, the Protestant Association, and the Association for the Blind.
Domestic and foreign organizations must register with a government agency and are required to provide an annual report of their activities to their sponsoring body. Most registered organizations, as well as many unregistered grassroots civic groups, do not challenge the VCP's authority but rather supplement the work of the state. They see themselves as partners working on projects in support of state policy, advocates for improved state services, or as representatives of marginalized groups. Their work focuses on medical and educational service provision, poverty alleviation, and other forms of development assistance. The vast majority of civic groups consciously avoid operating in sensitive or overtly political areas for fear of retribution. New legislation requiring impact assessments prior to the passage of laws has opened the door for greater civic group engagement in some public policy debates.
The legal framework regulating the nonprofit sector remains weak, comprised of a hodgepodge of decrees and laws. The government has made multiple attempts in recent years to draft more comprehensive regulations, but the process has been repeatedly delayed, in part due to lobbying by professional and business associations seeking to influence its provisions. Linguistic difficulties have also made the drafting process more challenging due to the problems translating the terms "NGO" and "civil society" into Vietnamese because of the rather negative and confrontational connotation associated with the most commonly used translations.
Although there has been an explosion of media outlets in Vietnam and coverage is much livelier and more critical than a decade ago, extensive restrictions on free expression remain. The constitution affirms the right to freedom of expression, but other legislation including internet-related decrees, the Press Law, the Publishing Law, the State Secrets Protection Ordinance, and the penal code are used to punish journalists and bloggers. After a relative easing of limitations on the press in 2006 as Vietnam prepared to host the APEC summit and join the WTO, the environment for free expression deteriorated as the government cracked down on journalists, bloggers, and prodemocracy activists. Dozens of media workers and other citizens have since been fired, fined, or imprisoned for reporting on sensitive issues.
As of 2008, there were over 850 publications, including 80 e-newspapers and 68 radio and television stations at the central and provincial levels. The dominant television station remains the state-run Viet Nam Television, accessible to 85 percent of households. All media outlets are wholly or partially owned by the state, with the exception of a small number of underground publications. In recent years, the government has encouraged media to report on corruption and act as an avenue of "oversight over the implementation of policies and laws by State authorities." In practice, however, this occurs within fairly strict limits. In a development widely perceived as a step backwards for media reporting on corruption, two journalists for Thanh Nien and Tuoi Tre, high-profile publications known for pushing the limits on permissible coverage, were arrested in May 2008 and sentenced to prison and re-education without detention for exposing a high-level scandal (see Anticorruption and Transparency). In a rare act of direct defiance among the state-controlled media, the newspapers published editorials denouncing the government's actions. The editors of both publications were subsequently removed from their positions, and at least five other journalists were stripped of their press credentials.
While some issues—such as criticism of the one-party system, religious freedom violations, and foreign policy—are largely off-limits, journalists are given greater leeway with regards to social, economic, and cultural topics. Indeed, the government intentionally leaves the boundaries of permissible expression vague, encouraging self-censorship. Nevertheless, officials may at times issue direct instructions on coverage. One reporter was quoted as saying "If you go too far your editor will receive a phone call from the [VCP's] Ideology Department."
In recent years, online communication and an increasingly vibrant blogosphere have emerged as the most important conduit for alternative viewpoints. Approximately 20 million people, or nearly a quarter of the population, reportedly accessed the internet in 2009. In response, the government has increased its efforts to censor content deemed undesirable. Internet service providers are required by law to block access to certain websites; internet cafes must record users' personal information and browsing activities; and blogging platforms must, as of December 2008, remove "harmful" content, report to the government every six months, and provide information about individual bloggers upon request. In 2007, Intellasia, an online news and investment site run by a Vietnamese-American entrepreneur, was shut down for "violating rules on copyright and political content." Unlike in China, Vietnamese citizens have access to some foreign news sites, including the BBC, though the sites of overseas human rights groups remain blocked.
Vietnam has ratified key international human rights treaties, including the International Covenant on Civil and Political Rights and the Convention Against Torture, and the constitution protects a range of rights. However, the government's protection of civil liberties remains highly selective. In recent years, while the government has instituted reforms to enhance protection of the rights of women and the disabled, it has also responded to citizens' demands for political reform and rights protection with violent repression.
Although Vietnamese law prohibits physical abuse of prisoners, pretrial detention conditions are reportedly harsh, with beatings and mistreatment of detainees routine, particularly as police seek to obtain confessions during interrogations. Human Rights Watch reported finding compelling evidence of "torture and ill-treatment of political and religious prisoners, including beatings and electric shock, and punitive placement of prisoners in solitary confinement in dark and unsanitary cells." Vietnam retains the death penalty as punishment for over two dozen offenses, not all of them violent. According to Amnesty International, from January 2004 to September 2008, media sources reported on 102 executions and 300 death sentences imposed.
According to the U.S. State Department, prisons are overcrowded and prisoners suffer from a poor diet, unclean drinking water, and poor sanitation, though conditions overall are not life threatening and prisoners have some access to health care. Human Rights Watch has reported that Vietnam holds over 400 political and religious prisoners, including members of opposition political parties, human rights defenders, trade union activists, journalists, land rights activists, and religious believers who refused to join state-controlled churches. Many of these individuals have been imprisoned under vaguely worded provisions in the penal code that effectively criminalize peaceful political expression and criticism of the government or VCP. These include Article 88, which punishes "conducting propaganda against the government," Article 258 on "abusing democratic freedoms to infringe upon the interests of the state," and Article 245 on "causing public disorder." During the crackdown on Bloc 8406 and related prodemocracy activists in 2007 and 2008, approximately 40 dissidents were arrested and at least 30 sentenced to prison.
Vietnamese law, primarily Ordinance 44, allows the government to administratively sentence citizens to house arrest, detention in "rehabilitation camps" or incarceration in mental hospitals without due process of law; citizens are sentenced for two-year renewable terms. Although the exact number of individuals detained under such provisions remains unknown, the restrictions were applied to several dissidents in recent years. In March 2008, police arrested Bui Kim Thanh, a land rights activist, and committed her to a mental hospital for the second time in two years.
Avenues to seek redress for abuses by public officials are extremely limited. There is no ombudsman or independent human rights commission. Procedures enabling citizens to complain of abuses exist but are cumbersome and largely ineffective. Recourse for victims of torture, unfair imprisonment, or other severe rights violations is nonexistent. The government has at times defended its harsh treatment of political dissidents.
Crime rates are generally low in Vietnam. Although petty theft and pickpocketing are common, violent crime is less prevalent. Drug use is an increasing social problem and contributes significantly to the crime rate. Combating human trafficking remains a significant challenge despite increased government efforts to enforce the law and implement a national action plan. Thousands of women and children are trafficked internally and externally each year, many into forced prostitution. Those found guilty of trafficking may face punishments ranging from two years to life in prison. A national steering committee coordinates government efforts to prosecute cases and organize public awareness programs. Prosecutions and official reporting on trafficking cases have increased in recent years. Between 2005 and 2007, over 900 cases involving 1,600 traffickers and 2,200 smuggled women and children were uncovered. Cooperation with other Southeast Asian countries has also improved.
Under the constitution and other legislation, women are guaranteed equal civil and political rights. Vietnam has ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and was ranked 31st out of 102 countries assessed in a 2009 Gender Equality Index. As of 2007, one quarter of NA representatives were women, a proportion that placed Vietnam third in the Asia-Pacific region. Women's collective interests are primarily represented via the VCP-controlled National Committee for the Advancement of Women (NCFAW) and the Women's Union. These groups have worked closely with the government, including its Department on Gender Equality, to implement a national strategy to increase women's representation in politics, as well as improve literacy rates, access to education, and healthcare.
Nevertheless, in its 2007 assessment, the CEDAW committee raised concerns that women remained underrepresented at local levels of government, that deep-rooted stereotypes continue to contribute to significant societal discrimination, and that HIV/AIDS infections among women had increased. Although economic opportunities for women have grown, they continue to face discrimination with respect to wages and promotions. This is partly due to their greater concentration in the informal sector, where employees generally enjoy fewer protections or access to social services.
In recent years, the government has taken steps to improve the legal regime protecting women's rights. Of particular significance are the Gender Equality Law passed in November 2006 and the Law on the Prevention of Domestic Violence, which was passed in November 2007 and entered into force in July 2008. Despite training to familiarize police and judicial officials with the laws, enforcement has been slow and insufficient transparency on data related to gender issues has made assessment of the laws' impact difficult. Meanwhile, violence against women remains widespread, reportedly affecting nearly half of rural women and contributing to approximately two-thirds of divorces.
Vietnam has 54 recognized ethnic groups, although 86 percent of the population is ethnic Vietnamese (Kinh). Some ethnic minorities are represented at high levels of government—VCP secretary general Nong Duc Manh is an ethnic Tay. In recent decades, conditions for the country's ethnic Chinese (Hoa) have improved dramatically compared to earlier campaigns of repression and property confiscation. Many have benefited from economic liberalization policies and poverty rates among the Hoa are reportedly lower than for the majority Kinh.
Other ethnic minorities continue to face widespread discrimination in education and employment, performing worse than the majority on health and development indicators. The government has attempted to address these problems by investing in programs to improve education, health facilities, employment opportunities, and infrastructure for ethnic minority citizens. Nevertheless, such programs are often implemented within government-controlled parameters and perceived by minority populations as aimed at weakening their unique cultural and linguistic identity. Although courses are available in minority languages in schools throughout the country, the number of hours dedicated to them is small in comparison to Vietnamese, leaving non-native Vietnamese speakers at a disadvantage.
The relationship between the government and several ethnic groups, notably the Khmer Krom and Montagnards, is particularly complex, as linguistic and cultural grievances often overlap with property disputes and restrictions on religious freedom. A 2009 Human Rights Watch Report on the treatment of the Khmer Krom, who number over one million and are concentrated in the Mekong delta region, describes increasing landlessness and poverty among farmers, state policies restricting school instruction in the Khmer language, and tight government controls over Theravada Buddhism. Such policies sparked land rights and religious freedom protests in 2007 and 2008; wary of the possible emergence of an ethno-nationalist movement, the authorities responded with repression, using dogs and electric batons to break up protests and arresting participants, including defrocking and later imprisoning five monks. The monks were released in 2008 following international pressure. The Montagnards, a Christian minority in the Central Highlands region, face similar circumstances and unrest has recently increased over land disputes resulting from confiscations to develop large state-owned coffee plantations.
Citizens' ability to participate in religious activities has grown in recent years, with an estimated 20 million citizens following a variety of religions. In 2008, new congregations and denominations were registered throughout the country, including five Protestant denominations, a Muslim sect, and the Baha'i community. However, the overall framework surrounding religious practice remains tightly controlled by the government, which perceives it as a privilege granted to citizens rather than an inalienable right. Under the 2004 Ordinance on Religion and Belief, all religious groups must be registered with the government and affiliated associations, such as the Vietnam Buddhist Sangha. The activities and leadership of individual registered congregations must be approved by the authorities. Independent religious education is not permitted and texts must be printed through a government-owned publishing house. Twelve religions are currently approved, of which Buddhism, Protestantism, and Catholicism are the largest. In 2008, the Catholic Church reported that the government had relaxed its control somewhat.
Despite such easing of restrictions, space for independent religious activity remains limited and some groups are banned outright. Procedures for registering groups are often inconsistent; in 2008 authorities reportedly delayed action on applications submitted by over 1,000 Protestant congregations in ethnic minority areas. Unregistered individual worshippers and groups risk harassment, beatings, and imprisonment, particularly if their activities are interpreted as political activism. Such incidents have reportedly decreased in recent years and the majority of religious practitioners in unregistered places of worship were able to operate without government interference in 2008. Nonetheless, several groups continue to face significant repression, including a banned faction of the Hoa Hao Buddhist Church, the leadership of the unrecognized Unified Buddhist Church of Vietnam (UBCV), the Montagnard Christians, and some members of the Khmer Krom minority.
Individuals do not generally face discrimination in employment on the basis of religious faith. VCP members are not required to be atheists, although advancement might be impeded, and the vast majority do not practice a religion. In 2008 the United Nations Day of VESAK 2008 (an annual Buddhist holiday) was held in Hanoi with the participation of over 4,000 Buddhist dignitaries, monks, and nuns. Human rights groups raised concerns that Vietnam had been chosen to host such a gathering, given its ongoing imprisonment of hundreds of religious believers.
The government, through the Ministry of Labor, Invalids and Social Affairs, has made significant efforts to accommodate the needs of Vietnam's large population of disabled individuals, including working with international donors to increase employment opportunities. The rights of the disabled are enshrined in the constitution and in various laws. The government is in the process of drafting a Law on the Handicapped as well as studying measures needed to ratify the Convention on the Rights of Persons with Disabilities. Existing laws provide incentives to firms that recruit people with disabilities, including offering subsidized government loans to enterprises where over 51 percent of employees are disabled. Firms that do not fulfill minimum disabled hiring requirements face fines, while new government and large public buildings must also include access for persons with disabilities.
Despite constitutional provisions protecting freedom of assembly, it remains restricted in practice. Official permission is required for group gatherings, though many informal groups are able to meet without interference. In recent years, a number of incidents have tested the resolve of authorities to tolerate public gatherings and political expression. Increasingly common small-scale protests are generally tolerated. By contrast, large-scale peaceful demonstrations have been met with repressive force. For example, students participating in anti-Chinese demonstrations prior to the Olympic torch relay in Ho Chi Minh City were reportedly detained by local police in April 2008. Government confiscation or destruction of church property for development projects sparked large-scale protests from both official and unofficial churches throughout 2008. As many as 15,000 Catholics participated in a special mass and prayer vigil over a property dispute in Hanoi in September 2008. The authorities used tear gas and electric batons to disperse the gathering and arrested at least eight participants.
All unions operate under the direction of the VCP-controlled Vietnam General Confederation of Labour (VGCL). As of August 2008, official union membership reportedly stood at over six million, nearly 40 percent of registered wage earners. Efforts to form or join independent unions are harshly repressed. Independent trade unions founded during a surge of rights activism in late 2006, including the United Worker-Farmers Organization of Vietnam (UWFO) and the Independent Workers' Union of Vietnam (IWUV), were banned, and their leaders arrested, beginning in November 2006. Since then, at least eight independent union activists have been sentenced to prison, although some have been released. Vietnamese security agents have also been implicated in the disappearance of IWUV founder Le Tri Tue, who has not been seen since fleeing to Cambodia to seek political asylum in May 2007.
All strikes must be approved by the VGCL and are illegal if they do not arise from a collective labor dispute or concern issues other than labor relations. A series of wildcat strikes in 2007 and 2008, mainly over pay disputes during a period of high inflation, prompted a tightening of legislation regulating the right to strike, including amendments made to the Labor Law in July 2007 that render legal strikes nearly impossible. In 2008, the government issued a decree declaring that workers participating in illegal strikes who are found to have caused damage to their employer are liable to be fined the equivalent of up to three months salary.
The judiciary consists of the Supreme People's Court (SPC), provincial and district people's courts, military tribunals, and administrative, economic, and labor courts. The highest court of appeal is the SPC, which reports to the NA. Administrative courts adjudicate complaints by citizens about official abuse and corruption. Special committees have also been established to resolve local disputes. Following an earlier trend, legal codification and technocratic reforms to the judicial system have continued in recent years. In its Legal System Development Strategy to 2010 set in motion in 2005, government pledged to increase access to justice, improve procedures for judicial appointments, and advance judicial training. Thus far, however, reform efforts have been incomplete and none have addressed core deficiencies related to political interference in the judiciary and persistent violations of due process rights.
Both direct and indirect government interference in the judiciary is commonplace. The VCP retains effective control over judicial appointments, and almost all judges are party members. Lay assessors empowered to assist judges with cases at the district level are appointed by the People's Councils from a VFF-approved pool of candidates. The selection process at all levels is highly politicized and judges are appointed and promoted largely based on political loyalty rather than merit. The grounds for removing judges are vaguely defined, the removal process is opaque, and no appeals process exists. Although the 2002 Law on the Organization of the People's Court aimed to protect judges from government interference, the VCP continues to exert significant indirect influence over trial outcomes through ensuring the appointment of politically reliable judges. In sensitive cases, the VCP routinely intervenes directly in decisions to launch prosecutions and determine verdicts. Corruption in the judiciary remains widespread, partly due to the country's large number of ad hoc and inconsistent laws, which create opportunities for judicial corruption in their enforcement. Powerful actors, including high-ranking government officials, are generally above the law.
Due to low judicial salaries and a weak tertiary education system, Vietnam suffers from a shortage of qualified lawyers and judges. Legal training is not required for lay assessors and most possess no legal education. With assistance from international donors, the Ministry of Justice is currently managing a training program aimed at tripling the number of lawyers in Vietnam. In July 2009, the Vietnam Bar Federation, which will answer to the government and the VCP, was established as the country's first national bar association.
Access to justice remains limited and the majority of Vietnamese are uneducated about their legal rights. While due process guarantees exist, they are routinely violated in practice. The constitution provides that citizens are innocent until proven guilty, but judges often presume guilt. In high-profile cases, it is common for the state-controlled media to engage in character assassination such that the public is convinced of the guilt of the accused prior to announcement of the verdict. Defendants and their lawyers are sometimes denied the opportunity to present a defense, prosecutors are not independent, and many trials last only a few hours. Most legal proceedings are open to the public.
Although defendants have a constitutional right to counsel, only those facing possible life sentences or the death penalty may be provided with a lawyer if they are unable to afford one themselves. In practice, ordinary citizens often do not have access to a lawyer, partly because there is only one lawyer for every 20,000 citizens. Political and religious prisoners are more purposefully and consistently denied counsel as the government pressures lawyers to refrain from defending political activists. At least three lawyers have been threatened, incarcerated, and in one case, committed to a mental institution for defending bloggers, political dissidents, and citizens seeking property restitution. Prominent human rights lawyer Le Cong Dinh was arrested on charges of "conducting propaganda against the government" on June 13, 2009 and was later expelled from the Ho Chi Minh City bar association.
The Vietnam People's Army (VPA) continues to play a prominent role in the country's affairs, with several members holding seats in the NA. The VPA remains largely loyal to the VCP and is well represented at its highest levels. The minister of national defense sits on the Politburo, as does the minister of public security. Military policy is determined by the party's Central Military Commission, which includes senior members of the military and the Politburo. In addition to responsibility for national defense, the VPA also supports local authorities in responding to natural disasters and plays a significant role in the economy, owning land and several enterprises, including one of the country's largest telecommunications firms; there is no meaningful oversight of its economic activities. The police and internal security agencies are regularly used by the VCP to repress political dissent.
As Vietnam is a socialist state, the state technically owns all land. In practice, individuals and businesses are granted "land use rights certificates" (LURC), generally for 50 years, which carry with them a number of rights and entitlements. These include the ability to transfer rights to use the land, the right to compensation in the event of expropriation, and the right to any benefits accrued from the use of the land. Amendments made in 2003 to the Land Law increased usage rights for foreigners and overseas Vietnamese. In a further extension, from September 2009 certain categories of overseas Vietnamese will have the right to lease houses, use land for business purposes, and receive compensation in the event of expropriation.
Land expropriation and reclassification have been highly contentious issues in Vietnam in recent years, as the phenomenon has spread the length and breadth of the country. By law, the state may expropriate land so long as owners of the LURC are compensated; the level of compensation may vary. Protests by farmers and peasants whose land was reclaimed by officials and subsequently developed as commercial property have become increasingly common, particularly in Ho Chi Minh City. At the core of most protests are complaints that the compensation received did not reflect the true value of the land, that promised jobs or training programs never materialized, or that compensation is insufficient to replace the farmer's lost agricultural livelihood. Similar sentiments exist among private firms. A recent survey that found that in most provinces, a majority of firms felt that compensation for expropriated land in their province was not fair. Redress through legal channels is subject to the limitations detailed above. As a result, both foreign and domestic firms often seek informal dispute resolution mechanisms, while ordinary citizens take to the streets.
The rapid increase in the number of golf courses over the past two years illustrates this phenomenon. Aside from mounting public anger over the use of confiscated land for recreational venues, the government is concerned about the potential impact on food security, as many courses are built on reclaimed rice fields. Investors often build courses in order to obtain a 50-year lease at a lower rent than if the land were classified as commercial or industrial, with the ultimate intention of using the land for real estate or other projects. At a recent NA session, the minister of planning and investment called for provincial authorities to cancel up to 50 of the 166 approved golf course projects across the country.
Corruption remains pervasive across Vietnamese society, despite the country's high economic growth rate. Indeed, Vietnam's fairly predictable patterns of corruption have not served to deter foreign investors. Decentralization has further contributed to a rise in corruption over the past decade: local authorities have been granted greater authority over expenditures and development projects, enabling considerable discretion in demanding bribes in exchange for licenses and permits. The oft-used term "ask-give mechanism" refers to a means of governing society by orders rather than the rule of law, such that actions by lower officials are contingent on receiving approval from superiors, with various "favors" exchanged in return. Vietnam ranked 121st out of 180 countries in Transparency International's (TI) 2008 Corruption Perceptions Index.
Under international and domestic pressure to address the problem, the government has continued a high-profile anticorruption campaign. Recent years have seen the passage of groundbreaking legislation, establishment of new anticorruption bodies, and ratification of the UN Convention Against Corruption. Despite such positive steps, enforcement of higher standards has been hindered by a combination of factors, including inadequate checks and balances, the lack of an independent judiciary and free media, poor incentive structures for civil servants, widespread nepotism and secrecy, and practically nonexistent protection for whistleblowers. Under such conditions, the gap between legal standards and practical realities will remain problematic for years to come.
Bureaucratic red tape is substantial and payments to expedite administrative procedures are common. Bribes are most often solicited by traffic police, construction regulators, and land registration, customs, and tax administration officials. Nonetheless, a 2007 TI survey found that only 14 percent of respondents from average households reported paying a petty bribe over the past year, a relatively low figure compared to neighboring countries. Within the private sector, the government has taken steps to decrease the number of requirements for establishing and operating a business by eliminating nearly 200 unnecessary permits.
Payment for position and promotion in the government bureaucracy remains the norm and the lines between public funds and private earnings are blurred. In April 2008, the VCP chief of Ca Mau Province, Vo Thanh Binh, handed nearly US$7,000 to police that he reported receiving as a bribe. He later claimed to have been offered tens of thousands of dollars in return for senior positions in state agencies. The 2005 Law on Thrift Practices and Anti-Wastefulness represented a preliminary attempt to address this situation by banning the use of public money for dinner parties, bonuses, and gifts. Nevertheless, most officials still take for granted that holding public office entails access to resources for supplementing one's salary.
Despite a growing private sector, state-owned enterprises still number around 4,000 and account for over one-third of GDP, providing numerous opportunities for corruption. Graft is especially rampant in the construction sector, and also widespread in the oil, gas, coal, paper, cement, airline, and telecommunications industries.
A main plank of the government's anticorruption campaign was the passage of a 2005 Anti-Corruption Law, which took effect in 2006, and subsequent implementing decrees. International observers generally assess the law and surrounding legal framework as well developed, particularly as it emphasizes systemic measures to reduce opportunities for corruption as a complement to punitive measures. It includes requirements for assets declarations, the creation of anticorruption bodies, and mechanisms for citizens to lodge complaints, among other provisions. Not surprisingly, enforcement of the law has been uneven and incomplete, hampered by a lack of political will to enable significant oversight by non-VCP entities. According to one study, enforcement was initially strong in 2006 and 2007 but weakened as officials developed more sophisticated strategies to circumvent supervision. The Anti-Corruption Law requires that government officials and family members annually disclose assets, including money held in overseas and domestic accounts and taxable income. Although hundreds of candidates for the NA election in 2007 reportedly declared their assets, implementation as a whole has been incomplete, and oversight mechanisms are still in the development stage. Assets declarations are not made available to the public unless a state official is found to be "unusually wealthy" and further investigations deemed necessary.
A number of agencies in Vietnam feature anticorruption mandates, although the lack of a truly independent body remains a key weakness of the overall framework. In 2007, the Office of the Steering Committee for Anti-Corruption (OSCAC) was established to implement the provisions of the 2005 law. The committee is headed by the prime minister and composed of members of various government bodies, including the judiciary and the VCP, raising doubts over its ability to be impartial. Meanwhile, the Government Inspectorate, which also functions as an ombudsman, has itself been a "frequent target of corruption."
Perhaps the most promising development in recent years was the decision in 2006 to enable the State Auditor of Vietnam (SAV) to report to the NA rather than the executive. The SAV was reorganized in 2004 as an independent organization and is charged with tracking the use of state funds by government agencies and settling the state budget. Its effectiveness has been limited, however, as the institution suffers from resource constraints, incomplete independence, and overlapping mandates with the Government Inspectorate. According to TI, "the SAV has a weak capacity to enforce auditing recommendations and there is little evidence that the government acts on SAV reports."
Other government bodies with anticorruption mandates include the Supreme People's Procuracy Department of Prosecution and Corruption Investigations, the Ministry of Public Security's Bureau of Corruption Criminal Investigation, and the State Inspectorate (SI) Anticorruption Bureau, all of which were set up in late 2006 and early 2007. The latter body is charged with investigating corruption cases and passing them along to the People's Procuracy for prosecution. While both have achieved some successes by uncovering and prosecuting scandals, their effectiveness has been limited by the presence of corruption within the bodies themselves.
Despite these constraints, hundreds of officials have been prosecuted for corruption in recent years, including several high-ranking ones. According to official figures, almost 300 of the nearly 400 corruption cases detected in 2008 were prosecuted. It would be a mistake, however, to perceive such statistics as a victory for independent judicial enforcement of anticorruption legislation. Rather, it may reflect one manifestation of the political center's attempt to counteract the potential loss of control that accompanies decentralization. In other instances, prosecution for corruption is a tool employed within broader intra-party struggles for authority.
In its rhetoric, the government has repeatedly encouraged the media to take on a greater role in exposing corruption. Media coverage of petty and grand corruption is more extensive today than five years ago. In addition, online newspapers and bloggers are playing an increasingly important role as corruption watchdogs, at times surpassing the influence and quantity of reporting in print publications. However, political infighting and the close association of government agencies, the police, the VCP, and the media renders investigating corruption extremely complicated and potentially hazardous for journalists and editors. Most journalists will only investigate corruption if given permission to do so by state officials.
The high-profile "PMU 18" scandal is a good example of the complexities surrounding exposure and prosecution of graft in Vietnam. In 2005, officials of the Ministry of Transport's Project Management Unit 18 (PMU-18) were accused of using US$2.6 million of ministry funds to gamble on English football matches. The case originally came to light in 2006, after police investigators leaked information to journalists working for national newspapers. It was suspected at the time that the reason for the leaks was to discredit the accused, who were allegedly in line for election to senior positions in the VCP. The alleged culprits subsequently were jailed and the transport minister was forced to resign. Two years later, however, the journalists who initially exposed the scandal were arrested and convicted for "abusing democratic freedoms to infringe upon the interests of the state." Also in 2008, charges against one of the officials involved were dropped and his party membership reinstated. The journalist who was imprisoned was ultimately released in January 2009 following a presidential pardon. Nevertheless, there are indications the official backlash against him and his colleague has renewed journalists' reluctance to investigate state abuses without clear high-level authorization.
There is little protection for whistleblowers despite provisions in the 2005 law allowing citizens to complain about perceived government abuses. In 2007, the government launched a website where citizens could register complaints about specific state agencies, including major municipalities, the NA, and the Communist Party Central Committee. A 2008 survey revealed, however, that many Vietnamese were fearful of reporting instances of corruption because of the impossibility of lodging complaints anonymously.
Corruption extends to the education sector and several scandals have erupted in recent years involving parents and students paying bribes in exchange for school admission and good grades. Almost all university faculty members interviewed in a study covering 1998–2008 admitted receiving bribes. It has become common for students to present teachers with expensive gifts on Teacher's Day, with the expectation of receiving higher grades.
Members of the public are not granted by law the right to access government information, and the government rarely fulfills such requests. However, there have been some improvements. The Ministry of Justice is currently preparing a freedom of information law and worked with the international free expression group Article 19 to prepare an initial draft in March 2009. The Law on the Promulgation of Legal Normative Documents and the 2004 Law on Local Laws have improved standards of transparency. Legal instruments must now be published in the Official Gazette for 15 days prior to coming into force, and the number of published laws has increased significantly. Almost all provinces now have a local gazette that publishes provincial and district regulations. The SPC also publishes decisions on its website.
Limited efforts have been made to improve financial accountability. Until 2000, the budget was a state secret. Since then, the NA and the provincial people's committees have played an increasingly important oversight role. Both take the role seriously, but fully effective oversight requires technical capacity and political independence that the bodies and their members lack. National and provincial budget and year-end accounts are also now published on the Ministry of Finance website. However, accounts are often inaccurate, as state agencies attempt to conceal their actual budget amount and spending record. Accounts are frequently published late and in many respects fall short of international standards. The military budget remains a secret. Vietnam received a score of 9 percent in the 2008 Open Budget Index.
Abuses related to government procurement remain widespread, despite passage of a 2005 Tendering Law. The government is currently in the process of implementing an e-procurement system, which may improve the situation. Open competition is often violated in practice, and collusion in bidding remains a problem. In August 2008, Japan suspended aid to Vietnam after four Japanese consultants were arrested on charges of paying US$800,000 in bribes to Ho Chi Minh City officials in order to secure consulting contracts for the Japanese-financed East-West Highway Project. Aid resumed in February 2009 after two Vietnamese officials were arrested for involvement in the scandal and sentenced to prison in September 2009.
There are also irregularities related to the disbursement of foreign assistance. Both the government and donors have formal mechanisms in place to minimize such abuses, but reports of officials using aid funds for personal enrichment continue to emerge. The 2005 Law on Thrift Practices and Anti-Wastefulness included provisions to decrease the waste and misuse of foreign assistance. However, the PMU-18 affair and other scandals indicate that the abuse of foreign assistance persists.
- The government should issue an implementing decree to trigger application of the Law on Lawmaking, continue to expand the National Assembly's oversight capacity, and permit a wide range of societal actors to participate in consultations and impact assessments on pending legislation.
- Efforts should be made to strengthen the Vietnamese media's ability to investigate and uncover instances of corruption and other abuses. Specifically, the variety of regulations and laws through which the government controls the media should be reduced, and guidelines governing the roles and responsibilities of journalists and editors should be clarified.
- Ambiguities in legal codes relating to national security and administrative detention—including Articles 88, 245, and 258 of the penal code, as well as Ordinance 44—should be clarified or repealed to prevent their use as a tool to discourage and punish legitimate opposition and debate. Those already imprisoned under these provisions should be released.
- The government should widen the range of churches and religious groups it recognizes and repair relations with disaffected religious communities.
- The government should reform existing procedures for seeking redress or establish a new and autonomous body, such as a human rights ombudsman, to serve as an avenue for citizens to seek meaningful remedy for abuses by public officials, including physical abuse and forced land confiscations.
- The government should work to improve the quality of the civil service through efforts to encourage promotion according to ability and merit, adjustment of the compensation system to combat high levels of attrition, and discouragement of civil servants from seeking supplementary incomes.
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