Sunday 17 May 2015

Tom Malinowski says Vietnam promised to reform its Penal Code

Below is an exclusive interview by VNRN with Assistant Secretary Tom Malinowski, Head of Delegation, US Delegation to the 19th US-Vietnam Human Rights Dialogue (May 7-8).

My name is Trang, I’m an independent journalist and blogger in Vietnam, covering political and marco economic issues. My first question is that as far as I know, on May 7, the US delegation and the MOFA have held the 19th round of US – Vietnam human rights dialogue. Could you please give us a description of the dialogue?

It was a very big delegation, representing the US State Department, our United States Trade Representative, USAIDS, and the White House. And on the Vietnam side there were the Foreign Ministry but also the Ministry of Public Security. We talked about many serious and important issues, including legal reform in Vietnam, freedom of expression, labor rights, disabilities’ rights, and freedom of religion. I would say it was a very open, honest and productive discussion. We were very clear about where we think Vietnam has made progress on human rights but also specific areas in which more progress should be made.

Probably we don’t have time to mention each because it takes us a full day with the government to go over everything, but I would say that probably the most important issue is legal reform. The government of Vietnam has committed to bring its laws into compliance with Vietnam’s Constitution and international treaties. So the government has acknowledged that there is more work to be done to achieve that goal and that this goal is in Vietnam’s interest. So we spent a lot of time talking about what that would mean in practice. A few examples, we spoke a great deal about reform to the Penal Code and the Criminal Procedure Code. We talked a great deal about some of the so-called “national security” articles in the Penal Code, the ones that are commonly used to prosecute people for free expression and criticism of the government in blogs, and so forth. And we expressed our hope that the plan to reform the Penal Code will touch on those critical aspects of the Code so that the government can meet their stated goal of full compliance with the Constitution and international human rights standards.

Photo courtesy of AFP

Did they give any specific schedule for a legal reform, like when they will amend the Penal Code, exactly when? Which year, for example?

We’re still not absolutely clear about that. We asked the government to clarify a schedule and also a plan, you know, to introduce the law on civil society association. And we asked about when the government expects all of this to occur. Ultimately the timing is up to the government and the national assembly that it is not something that the United States can dictate. That would be inappropriate. But it is important, we think, for the government to consult fully with Vietnam civil society to take their concern into account and to make sure that there is some change to the critical parts of the Penal Code that are not fully in compliance with international standards.

By consulting civil society sector, do you think they have included the independent or unregistered civil society in Vietnam?

I think that the government should take into account some witness of the Vietnamese civil society whatever their legal status is.

Do you link Vietnam’s entry into TPP with these requirements?

Entry into TPP is linked for every country to comply with internationally recognized labor standards. And the most, one of the most important things is labor standard and freedom of association. So that is a requirement for every country that wants to join the TPP and it is part of our negotiation with the government of Vietnam. One of the points that we had made to the government is that many workers in Vietnam are already associated, really. They are already taking the initiative to create local labor association to protect their rights but they are doing so in a legal latitude. They don’t have legal protection for what they are doing. Especially what we’re asking Vietnam to do is to recognize what is already happening in the society. What they need is legal protection. We think that it will be very much of the government’s interest because it would reinforce stable relations between workers and their employers, and will also, obviously will also help with the TPP. Now, beyond labor rights, there is a great deal of concern in the US Congress over other HR issues in Vietnam that are directly concerned with the government. The prospect for TPP to be accepted will improve if the government continues to take steps on other HR issues, like release of political prisoners and legal reform.

Do you think Vietnam will join the TPP soon?

Well, I don’t know what will happen but I am optimistic because I think that the economic and strategic benefits of joining TPP are much, much greater than any risk the government will be taking on if they agree to the requirement of joining.

You know, I’m not going to say it is a tradition, but in the past, the Vietnamese communist government tent to break their promises. Let us take as examples the Geneva Accord in 1954, the Paris Convention in 1973, and most recently, the WTO entrance in 2007. Vietnam had made a lot of promises before they entered the WTO but after gaining membership they broke many of the commitments. Do you think history will repeat itself with the TPP? Will there be such a chance?

What I will say is we know that commitments and promises are only the beginning, but what is most important is the implementation of commitment, and I think people will believe, once TPP is adopted, that there are many mechanisms to build into the process to encourage implementation and compliance. We don’t expect any of this to be easy. Changes are always hard and there will always be resistance. But we just think that TPP is the chance to empower and support those in Vietnam who are already working for reform.

Beyond promises, in the very short time to come, what in particular will they do to prove their good will? Will they release any political prisoner or will allow the creation of any independent labor union?

Right. As you say there will be a very short time to come. We were only talking about the TPP for here, at the moment, for now, so we made clear during the dialogue what we think should be obvious in any case that any positive step that the government of Vietnam takes will be extremely helpful to prospect for adoption of the TPP, and any negative step will be hurtful. So, even though the process of legal reform is the one that will inevitably take a long time, there are definitely signals that the government could send now about its intention and of course it could, and we hope it will act to, resolve some of the specific concern.

So, what should democracy supporters in Vietnam do to make sure that the government will realize their commitment?

Well, I think if Vietnam becomes a TPP member, there will be an agreement with specific commitments, particularly on the issues of labor rights and freedom of association. And I think the Vietnamese people and Vietnamese civil society will be able to look at those specific commitments and make clear that they expect their government to abide by. I can say that the United States will continue to consult very, very closely with Vietnamese civil society as we monitor the government’s compliance with its commitment after TPP, should we get the agreement. So the voice of people in Vietnam who are working for human rights and for the rule of law is a very powerful voice. It reaches well beyond Vietnam and is heard all over the world and it continues to be heard.

So great to hear you say that. So look back on the dialogue you said they have done good things. Could you please elaborate the good things they have made, and the HR violations that they still commit?

In terms of progress, I think, since the last dialogue last year, the government has ratified two important human rights treaties, the Convention against Torture and the Convention on Disabilities’ Rights. It has released some prisoners of conscience. Not as many as it should but some. We believe the total number has declined in the last three years. In the last several months in the year 2015, we have seen virtually no prosecution for political, for peaceful expression and peaceful political activists. The government has committed to reforming the penal code and criminal procedural code and other laws to make it consistent with international standards. So that is some of the progress.

What problems do we see? We know there are still problems of Internet activists being harassed in large numbers. Today, many of them still face harassment and threat, even violence, we saw a journalist being beaten just today, Anh Chi. And you know, that is, I would say, both a problem to the HR point of view and also a very stupid thing to do at a time when there is so much attention internationally to human rights in Vietnam. With this we will continue to state a date of construction of civil society and religion for the nation. And we not yet plead the government propose strategic reform to national security articles in the law. So it’s the process of reviewing and reforming the law that we have not yet seen the government propose specific changes…

You said there are both risks and benefits to enter the TPP. What are those risks and benefits?

Well, I think the benefits are clear. There would be economic benefits for the people of Vietnam if the country is a part of TPP. I think there are strategic benefits for Vietnam to be part of this community of countries that include the United States. I think Vietnam will be more secure and I think there will also be recognition of Vietnam’s important place in the region. That would be benefits for the government.

As for the risks, you know, membership of the TPP requires, as we have discussed, the government to undertake a number of reforms and there may be some within the Vietnamese government who think that those reforms will lead to greater risks for the country, to less control for the authorities. But as I mentioned, I believe that the benefits, not just from the country’s point of view but even from the government’s point of view, outweigh those risks. I think the reforms that Vietnam is being asked to undertake under TPP will also make the country stronger, will also make the country more stable, and more secure, and more prosperous. And so from the point of view of Vietnam’s national interests, there are only benefits, not a balance between risks and benefits. But there may be some in the government who see some risks.

I’m asking out of curiosity: The process of negotiation seems quite secret and closed to the public in every country, not just Vietnam. Why?

Well, diplomatic negotiations are never conducted in front of TV cameras for obvious reasons: it would be very difficult to come to an agreement on many sensitive issues if there were. But I can say that in developing our negotiated goals with the TPP, the US. government consulted with civil society in the United States and Vietnam. We did it by speaking to people in civil society in Vietnam that we come to meet what the problem to overcome here, whether the deficiency, for example of labor rights, will be overcome.

And we are operating with very clear instructions: from members of Congress and from the American people. And the Congress has said that labor rights and human rights are both negotiated objectives for TPP, we know that we have to deliver an agreement that satisfies their concerns of those issues. Now, once the agreement is reached, that agreement will be before the public, and people in both countries will be able to judge whether the agreement meets their expectation, the Congress will be able to look at specific issues and decide whether it’s the subject that they want to improve.

I am optimistic that we will reach an agreement and the text will be released, people will see there are very, very serious conditions and protection, in particular in labor rights, and they will agree with us that this is something that is really worth doing.

Do you think there is any area that the Vietnamese government seems least compromising?

I don’t want to talk about the negotiation itself, I will just say that it is very clear what the requirements are: Every member of the TPP has to meet certain requirements, including respect for internationally recognized labor rights. So every member has to decide whether they want to take that deal, and I think that taking that deal will help the government and people of Vietnam, and therefore in the end, we are likely to reach the agreement.