Người dịch: Nhóm Hương Nguyên
Người hiệu đính: Nam Việt
STATEMENT ON THE DECREE NO. 72/2013/ND-CP, A VIOLATION OF THE CONSTITUTION OF VIETNAM AND OF INTERNATIONAL CONVENTIONS TO WHICH VIETNAM IS A SIGNATORY
- Citizens of the Socialist Republic of Vietnam, especially those who use the Internet as a means to enrich knowledge and awareness, to be updated with domestic and international information in order to live, to learn and to work with human dignity in a civilized and modern society;
- Vietnamese people who are residing abroad and concerned about the destiny of Vietnam, about the freedom and democracy of the compatriots inside the country;
Considering that the Decree No 72/2013/ND-CP of the Government on "Management, provision and use of Internet services and online information" dated 15 July 2013, effective 01 September 2013 (hereinafter referred to as Decree 72) includes provisions that are or potentially are of arbitrary implementation and contrary to the Constitution, the laws of Vietnam, the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights of the United Nations:
Some wrongful provisions in Decree 72:
I. Clauses 3, 4, 5 of Article 20 - "Classification of electronic information", give the following definitions:
"3. Internal websites are those of agencies, organizations and businesses that provide information on the functions, powers, duties, organizational structure, services, products, field of activity or business and other information for the operations of such agencies, organizations, and businesses and that do not provide general information.
4. Individuals’ websites are those set by such individuals or by using social networking services that provide and exchange information of such individuals and that do not represent other organizations or individuals and that do not provide general information.
5. Professional websites are those of agencies, organizations and businesses that provide applications and services in the fields of telecommunication, information technology, radio, television, trade, finance, banking, culture, health, education and other professional fields and that do not provide general information. "
Article 3. Interpretation of terms
In this Decree, the terms below are construed as follows:
"19. General information is the one that is compiled from multiple sources, multiple types of information, on the fields of politics, economy, culture and social affairs."
'II. Article 22. Provide public information across borders. 1. Foreign organizations, businesses and individuals that provide public information through the border to users in Vietnam or accessible in Vietnam, must comply with the provisions of the laws of Vietnam. 2. Ministry of Information and Communications shall give detailed guidance on this issue."
The above mentioned contents are contrary to the Information Technology Law of Vietnam promulgated on June 29, 2006 in which:
Article 4. Interpretation of terms
“17. Website means a website or a collection of websites in the network environment in service of information supply and exchange.”
Article 2 of the Information Technology Law, on Subjects of application, read: This Law applies to Vietnamese and foreign organizations and individuals engaged in information technology application and development activities in Vietnam.
Article 3.- Application of the Information Technology Law
When a treaty to which the Socialist Republic of Vietnam is a contracting party contains provisions different from those of this Law, the provisions of that treaty prevail.
Decree 72 is also a step backwards in comparison to the Decree No. 97/2008/ND-CP on the management, provision and use of Internet services and electronic information on the Internet as at the following points:
Article 2. Subjects of application
"1.This Decree applies to organizations and individuals involved in the management, provision and use of Internet services and electronic information on the Internet in Vietnam.”
2. When a treaty relating to the Internet to which the Socialist Republic of Vietnam is a signatory or a participant contains provisions different from those of this Decree, the provisions of that treaty prevail.
Article 3. Interpretation of terms
“12. Website means a website or a collection of websites on the Internet in service of information supply and exchange on the Internet, including blogs, portals and other similar forms.”
Thus, the clauses 3, 4, 5 in the Article 20 - "Classification of websites" and Article 22 - "Providing public information across borders" contain provisions that are or potentially are of arbitrary implementation to prevent Vietnamese citizens from exercising their freedom of speech, freedom to seek, receive and impart information and ideas that are protected by the Constitution of Vietnam and international conventions to which Vietnam is a signatory.
1- Article 69 of the 1992 Constitution, amended and supplemented in 2001:
“Citizens are entitled to freedom of speech and freedom of the press; they have the right to receive information and the right of assembly, association and demonstration in accordance with the law”.
2 - International Covenant on Civil and Political Rights in 1966 that Vietnam participated in 1982:
“2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”.
“3.The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order, or of public health or morals.”
3 – Universal Declaration of Human Rights of the United Nations, 1948:
· Article 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Decree 72 contains provisions that are contrary to the recent claims of improving democracy, human rights by the Communist Party of Vietnam, especially in the nationwide discussion on amending the 1992 Constitution; that go against the interests of the people and the country; that undermine people's confidence in the honesty and wisdom of government.
The promulgation of Decree 72, with the obvious violations of laws and with potential risks of being implemented arbitrarily and violating the people’s freedom of speech, in the context of Vietnam having announced a comprehensive partnership with the U.S. in the recent visit of President Truong Tan Sang to the U.S., in the context that the appeal trial of two students Dinh Nguyen Kha and Nguyen Phuong Uyen which is recognized as a step towards progress of freedom of speech; while Vietnam was submitting her candidacy to the Human Rights Council of the United Nations, is an act that goes against the trend of Vietnam's integration into the world community, that undermines the prestige of Vietnam in the international arena, that is very detrimental to enlisting the support of international partners for the national defense cause against the Beijing expansionists.
Therefore, we state our stance:
1/ Reject Decree 72;
2/ Request the government to delay the implementation of this decree to modify and adjust those provisions that break or potentially break the Constitution and the laws of Vietnam as well as the International Conventions to which Vietnam is a signatory as mentioned above;
3 / Urgently request the Congress to verify those provisions in Decree 72 that break Vietnam's Constitution and international conventions to which Vietnam is a signatory and then, to intervene in this issue, within Congress' authority.
Paragraph 9 of Article 84 of the 1992 Constitution:
"The National Assembly has the following duties and powers:
9. To abrogate texts adopted by the President, the Standing Committee of the National Assembly, the Government, the Prime Minister of the Government, the Supreme People's Court and the People's Inspectorate General which are incompatible with the Constitution, the laws and resolutions of the National Assembly.
Freedom of speech, freedom to seek, receive and impart information are prerequisite to build democracy for the country. They are essential for the country to expand relationship with international community for a sustainable development. If those rights are hampered or limited, all progresses of the country, comprehensively, will fall into stagnation. The very modest pace of our country on its way to develop, which has been very hard to gain, will certainly be pushed back. We demand that all policies of the State of Vietnam in the future do absolutely respect these sacred and basic rights.