Vietnam: New Law Threatens Right to a Defense

Vietnam should immediately repeal a provision in its revised penal code that would hold lawyers criminally responsible for not reporting clients to the authorities for a number of crimes, Human Rights Watch said today. The revised code also contains a number of changes heightening criminal penalties against criticism of the government or Vietnam's one-party state.

"Requiring lawyers to violate lawyer-client confidentiality will mean that lawyers become agents of the state and clients won't have any reason to trust their lawyers," said Brad Adams, Asia director. "Vietnam considers any criticism or opposition to the government or Communist Party to be a 'national security' matter - this will undermine any possibility of real legal defense in such cases."

On June 20, 2017, the Vietnamese National Assembly passed a revised penal code that will come into effect on January 1, 2018. Article 19, section 3 of the revised penal code states that, "[When] the person who does not report [on people] is a defender, he/she is not held criminally accountable in accordance with clause 1 of this article, except for not reporting on national security crimes or other especially serious crimes which the person he/she is defending is preparing to carry out, is carrying out, or has carried out and the defender clearly knows about it while carrying out his/her defense duty."

Many Vietnamese lawyers publicly voiced their concerns about this new requirement. On June 12, the Ho Chi Minh City Bar Association submitted a letter to the National Assembly urging it to drop the clause. According to the letter, the new clause conflicts with the revised Criminal Procedure Code and the Law on Lawyers, which requires legal defenders to keep information about their cases confidential. The letter states that this new clause is "a step back from the 1999 Penal Code."

"Vietnam's foreign investors and trading partners should be very concerned about laws that would require their lawyers to pass on confidential information to the authorities to avoid getting into trouble," Adams said.

Of particular concern is that article 19 targets people accused of vaguely defined national security crimes, including "activities aiming to overthrow the people's administration" (article 79), "undermining national unity policy" (article 87), "conducting propaganda against the State of the Socialist Republic of Vietnam" (article 88) and "disrupting security" (article 89). Instead of repealing such laws that are often used to punish the exercise of freedom of association, assembly and speech, the government has now added even harsher punishments for bloggers and rights activists.

Among these are new clauses in article 109 (previously article 79), and article 117 (previously article 88) to the effect that whoever "takes actions in preparation of committing this crime shall be subject to between one and five years of imprisonment." This means that one can be imprisoned up to five years for preparing to criticize the state or preparing to join an independent political group disapproved by the government. A number of vaguely-worded articles related to national security crimes are often used to prosecute people for exercising basic rights, and now they can be (mis)used in even more circumstances. Vietnam ought to have repealed and reformed these laws, not made them of wider application.

In most politically-motivated arrests and convictions in Vietnam, the authorities use article 79 to punish people for being affiliated with a particular group or organization disapproved by the ruling communist party. Article 87 is often used to punish people for participating in religious groups not sanctioned by the state. Article 88 is a tool to gag dissidents and bloggers critical of the party or the government. Article 89 is used to punish independent labor activists who help organize wildcat strikes.

"The revised penal code illustrates Vietnam's lack of commitment to improve its abysmal human rights record," said Adams. "If Vietnam sincerely wants to promote the rule of law, it should facilitate the work of lawyers instead of introducing new laws to make it impossible to do their jobs."