Heiner Bielefeldt | OHCHR
The planned visits to An Giang, Gia Lai and Kon Tum provinces were unfortunately interrupted from 28 to 30 July. I received credible information that some individuals whom I wanted to meet with had been either under heavy surveillance, warned, intimidated, harassed or prevented from travelling by the police. Even those who successfully met with me were not free from a certain degree of police surveillance or questioning
Hanoi, Viet Nam 31 July 2014
Introduction
In my capacity as the United Nations Special Rapporteur on freedom of religion or belief, I was invited by the Government of the Socialist Republic of Viet Nam to conduct a country visit from 21 to 31 July 2014.
First of all, I thank the Government for inviting me here and maintaining constructive cooperation with my mandate. My esteemed predecessor, the late Abdelfattah Amor, had also visited Viet Nam in 1998. Since 2010, Viet Nam has actively engaged with the Special Procedures and invited six mandate holders, including myself, to conduct a country visit. Viet Nam is also a member of the Human Rights Council. The Ministry of Foreign Affairs has been most helpful throughout the preparation of the visit and the visit itself. It also facilitated a meeting with a prisoner.
I am grateful to all interlocutors from the legislative, administrative and judiciary branch of the Government, religious communities or institutions (recognized and unrecognized), the diplomatic community and UN agencies. I would like to thank the UNDP in Hanoi for their kind logistical support. Discussions held in Hanoi, Tuyen Quang, Ho Chi Minh City and Vinh Long were generally open, frank and constructive.
The planned visits to An Giang, Gia Lai and Kon Tum provinces were unfortunately interrupted from 28 to 30 July. I received credible information that some individuals whom I wanted to meet with had been either under heavy surveillance, warned, intimidated, harassed or prevented from travelling by the police. Even those who successfully met with me were not free from a certain degree of police surveillance or questioning. Moreover, I was closely monitored of my whereabouts by undeclared “security or police agents”, while the privacy and confidentiality of some meetings could have been compromised. All these incidents are in clear violation of the terms of reference of any country visit.
Today, I present my preliminary findings and some main observations to which I wish to draw your attention. This press statement is not to be confused with the final report. The formal report is to be presented to the 28th session of the Human Rights Council in March 2015. In preparation of the report, I will continue to engage with and work in consultation with the Government and all relevant stakeholders to receive more information and clarification, especially on issues that relate to parts of the country I could not visit.
Brief overview on the religious landscape in Viet Nam
Viet Nam is home to a broad variety of religions and beliefs. The Government Committee on Religious Affairs informed me that there are currently 37 registered religious organizations in the country. According to the official statistics presented by the Government, the overall number of followers of recognized religions is about 24 million out of a population of almost 90 million. Formally recognized religious communities include 11 million Buddhists, 6.2 million Catholics, 1.4 million Protestants, 4.4 million Cao Dai followers, 1.3 million Hoa Hao Buddhists as well as 75,000 Muslims, 7000 Baha’ís, 1500 Hindus and others. The official number of places of worship comprises 26,387 pagodas, temples, churches and other religious facilities. Viet Nam takes pride in having hosted international conferences of religious leaders, in particular United Nation Day of Vesak, a summit of Buddhist dignitaries which took place in May 2014. I was also informed that the people of Viet Nam comprise 54 different ethnic groups. Ethic minority status and membership of a religious minority sometimes overlap.
While the majority of Vietnamese do not belong to one of the officially recognized religious communities, they may nonetheless – occasionally or regularly – practise certain traditional rituals, usually referred to in Viet Nam under the term “belief”. Many of those traditional rituals express veneration of ancestors. Moreover, there is also a reality of religious faiths and practices outside of the officially recognized religious communities. To get a clear and comprehensive picture of this reality is difficult, if not impossible. Whereas some Government experts estimated the number of followers of non-registered communities to be very low, I also heard conjectures that the number of people practising religions outside of registered communities – or wishing to do so – may be up to millions. Apart from very different estimates concerning numbers, I also received conflicting information with regard to the conditions under which people can enjoy their human right to freedom of thought, conscience, religion or belief.
Many interlocutors emphasized the fact that the conditions for the exercise of religious freedom have generally improved in Viet Nam in comparison to the situation post-1975. This assessment was largely shared by representatives of religious communities who acknowledged that, despite ongoing challenges, they now have generally more space for practising religion than in the past. At the same time, the conditions under which individuals or groups can practise their religion or belief are unpredictable and often depend on good will of Government agencies, not least the local authorities. Moreover, members of religious minorities without official recognition continue to face enormous difficulties in exercising their rights to freedom of religion or belief, especially where their religious practices or rituals are considered not to match the “legitimate interests of the majority” – a phrase often invoked in some of the discussions.
Relevant legal provisions and their implementation
Legal norms regulating the practice of religion or belief
Viet Nam has ratified most international human rights instruments, including the International Covenant on Civil and Political Rights, whose article 18 protects freedom of thought, conscience, religion or belief broadly.
The newly amended Vietnamese Constitution1 covers in its second chapter “human rights and citizen’s fundamental rights and duties”. In this context, the 2013 Constitution also refers to freedom of belief or religion in article 24. Representatives of the Government repeatedly highlighted that rights holders of this provision are all human beings, whereas the respective provision within the 1992 Constitution was confined to citizens of Viet Nam. This has been presented as an indicator of a generally more positive attitude towards freedom of religion or belief. Article 24 reads as follows:
“1. Every one shall enjoy freedom of belief and of religion; he can follow any religion or follow none. All religions are equal before the law.
2. The State respects and protects freedom of belief and of religion.
3. No one has the right to infringe on the freedom of belief and religion or to take advantage of belief and religion to violate the law.”
Viet Nam does not have a law regulating religious affairs. The most relevant legal document is the Ordinance on Belief and Religion adopted on 18 June 2004. Decree no. 92, of 8 November 2012, further specifies the provisions contained in the Ordinance. As an important clarification within the Ordinance on Belief and Religion, Article 38 confirms the priority of international agreements over provisions of the Ordinance whenever they differ2.
I have learned that a proposal to pass a law on religious affairs based on the current Ordinance will be submitted in 2015 and is expected to be adopted in 2016. Apart from the higher legal status of a law in comparison to an ordinance, the process of creating a new comprehensive law might offer an opportunity to introduce substantive revisions with the purpose of strengthening the right to freedom of religion or belief and its implementation in practice. When discussing this issue with Government experts on religious affairs, there have been indications that land issues will be better addressed while the freedom for foreigners to practice their religions or belief will also become easier. Others have also expressed their willingness to consider substantive changes to overcome the restrictive language of the 2004 Ordinance.
Restrictions of freedom of religion or belief
According to international standards, the exercise of the human right to freedom of religion or belief is not without possible limitations. At the same time, article 18 of the International Covenant on Civil and Political Rights (ICCPR) lists a number of criteria all of which must be met for such limitations to be legitimate. Strict observance of all of these criteria is crucial to ensure that freedom of religion or belief becomes a reality.
Limitation clauses as provided in the relevant legal norms of Viet Nam are much broader than the limitation clauses enshrined in the ICCPR. Overly-broad limitation clauses may blur the contours of freedom of religion or belief thereby seriously jeopardizing its implementation in practice. What is missing in the Vietnamese legal norms concerning religion, first of all, is a clarification that the internal dimension of a person’s religious, moral or philosophical conviction – usually termed the “forum internum” – must be respected unconditionally and can never be exposed to any restrictions or interferences for whatever reasons, even in situations of a serious crisis or an emergency. The unconditional protection of the forum internum reflects the insight that forcing human beings to feign a faith which is not authentic or denounce their deeply held convictions may undermine their self-respect. The prohibition of any coercive interference with the inner nucleus of a person’s religious, moral or philosophical convictions therefore has the same elevated status in international law as the prohibition of slavery or the prohibition of torture. These are absolute prohibitions with no exceptions. In contrast, Article 24 of the 2013 Constitution, while making reference to freedom of belief and religion in general terms, does not provide for a specific protection of the forum internum dimension of freedom of religion or belief.
Unlike the forum internum, manifestations of religions or beliefs in the social sphere (“forum externum”) are not protected unconditionally by international law. It is therefore all the more important to specify the conditions for limitations in a clear and predictable manner. This should be done in the understanding that freedom of religion or belief, in all its individual and communitarian dimensions, has the normative status of a universal human right. The relationship between this freedom and its limitations thus should be seen as a relationship between rule and exception. Accordingly, the burden or argumentation does not fall on those who wish to exercise their right to freedom of religion or belief: it rests with those who deem limitations necessary. In case of doubt the rule prevails, and exceptions always require an extra burden of argumentation, both at the level of empirical evidence and the level of normative reasoning.
In discussions with Government representatives I frequently heard broad references to “the Vietnamese law” in general. However, in order to meet the conditions for limitations set out in article 18 of the ICCPR, limitations must be more specific and fulfil additional criteria. Apart from being legally prescribed in a clear, precise and predictable manner, the limitations must be necessary to pursue a legitimate aim – the protection of “public safety, order, health, or morals or the fundamental rights and freedoms of others”3. Moreover, limitations must strictly remain with the realm of proportionality which inter alia means they should always be confined to a minimum degree of interference. These and other criteria are prescribed with the purpose of safeguarding the substance of freedom of religion or belief also in situations of a (seeming or factual) collision with other rights or important public interests.
By comparison, the relevant legal documents of Viet Nam give Government agencies broad space to regulate, limit, restrict of forbid the exercise of freedom of religion or belief. Article 14 of the 2013 Constitution lists a number of reasons for restricting human rights and citizens’ rights which, I presume, also apply to freedom of religion or belief. While the possibility to restrict human rights in the interest of “national defence, national security, social order and security, social morality and the health of the community”4 already differs from the purposes listed in article 18 of the ICCPR, the Ordinance on Belief and Religion also makes reference to purposes, such as “patriotism”, “national unity”, “people’s unity” and “national cultural traditions”. Furthermore, according to article 8, paragraph 2 of the Ordinance, “no one shall be permitted to abuse the right to freedom of belief and religion to undermine the peace, independence and unity of the country, to instigate violence or carry out war propaganda, or propaganda against State laws or policies; or to sow division among the people and religions; to disturb public order, to encroach upon the life, health, human dignity, honour or property of others, or to obstruct the exercise by the people of their civic rights or obligations; to carry out superstitious activities; or to commit other breaches of the law”.
During my discussions with Government officials of different agencies, including senior representatives of the judiciary, I heard many references to such overly-broad restrictions. The invocation of unspecified “social interests” may even lead to criminal prosecution, in accordance to Article 258 of the Penal Code. Its first paragraph reads as follows: “Those who abuse the rights to freedom of speech, freedom of press, freedom of belief, religion, assembly, association and other democratic freedoms to infringe upon the interest of the State, the legitimate rights and interests of organizations and/or citizens shall be subject to warning, non-custodial reform for up to three years or a prison term of between six months and three years.” What I find particularly concerning in this paragraph is the absence of specified acts that would amount to an “abuse” of religious freedom of other democratic freedoms. Members of the People’s Supreme Court did not give any further specifications as to the meaning of the term “abuse”. The wide and vague formulation in Article 258 gives the relevant authorities a carte blanche to sanction people for all sorts of activities – and their underlying attitudes – which are deemed to somehow run counter to the interest of the State. From the many discussions that I have had, this is not a merely theoretical problem, as article 258 of the Penal Code has been invoked frequently in practice and has been applied to restrict freedom of religion or belief and other human rights. When the question of prisoners of conscience was raised, I was told that no such case exists. Given the vague formulations and the high number of cases charged under article 258 of the Penal Code, one wonders how the authorities can preclude such a possibility.
Administrative stipulations on religious practices
The Ordinance on Belief and Religion contains a broad number of regulations that the religious communities have to comply with in order to be able to operate. These regulations receive further specification in Decree no. 92. For instance, religious communities are requested to get registration status with the Government Committee for Religious Affairs; they have to apply for specific permits for the construction or renovation of houses of worship; they have to present to the local authorities an annual overview of planned activities; they have to inform the authorities about the ordainment of religious clergy; they have to get approval from the relevant local authorities to conduct public ceremonies, etc. The stipulations contained in the Ordinance and the Decree include obligations concerning information and notification as well as provisions for formal approval before conducting certain religious activities. The Decree also specifies the timeframes within which the authorities are requested to respond to applications submitted to them. In the case of a negative decision, they are obliged to state the reasons.
My preliminary findings are not meant to provide a comprehensive assessment of the very detailed administrative provisions contained in the Ordinance and the Decree as to whether they appropriately reflect respect for freedom of religion or belief. Instead, I will concentrate on a problem which came up in almost all of ours discussions, i.e. the requirement for religious communities to receive registration status with the authorities. According to article 16 of the Ordinance, organizations are required to meet a number of criteria to obtain the status of a legally recognized religious organization. Inter alia, these conditions are aimed to ensuring respect for the “fine customs and habits and interests of the nation”5. Without going into procedural and substantive details, I would like to focus on two particularly important aspects.
The first aspect concerns the nature of registration. Is it an offer or is it a formal requirement? When discussing this question, I received different answers, and there seems to be some lack of clarity. Whereas a number of Government representatives unambiguously stated that without legal registration by the authorities communities would not be entitled to operate, others indicated that a non-registered community could be allowed to exercise some basic religious functions, such as holding religious gatherings in private homes. Even within this more accommodating interpretation, however, the scope of freedom of religion or belief strikes me as remaining extremely limited and unclear.
In this context, the term “recognition”, as used of the Ordinance and mentioned in many conversations, may warrant a short clarification. The exercise of the human right to freedom of religion or belief, by individuals and/or in community with others, cannot be made dependent on any specific acts of administrative recognition or approval. As a universal right, freedom of religion or belief inheres in all human beings and thus has a normative status prior to any administrative acts and procedures whatsoever. The preamble of the 1948 Universal Declaration of Human Rights starts with “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family”. Obviously, “recognition” here points to the basic insight that any meaningful interaction among human beings presupposes respect for human dignity and human rights. “Recognition” in this fundamental sense of respect for human dignity and human rights thus precedes any “recognition” in terms of specific administrative acts.
Accordingly, the right of an individual or group to their freedom of religion or belief can never be “created” by any administrative procedures. Rather, it is the other way around: registration should serve this human right, which itself must be respected as preceding any registration. In keeping with this general understanding, registration should be an offer by the State, not a compulsory legal requirement. The situation of non-registered religious communities thus assumes the quality of an important test question about the understanding of the normative status of freedom of religion or belief in general.
The second point I would like to make concerns the availability of some alternative legal personality status for communities which are not registered as religious organizations. Given the rather high threshold set out by article 16 of the Ordinance, it seems important that religious or belief communities have a reliable option to obtain some alternative form of legal personality status, if they so wish. Under freedom of religion or belief, States have a responsibility to provide an appropriate legal and institutional infrastructure which allows religious and belief communities to operate freely, without undue burdens and without discrimination. This includes the option for religious and belief communities to obtain legal personality status which they may need to undertake important community functions, such as purchasing real estate, employing professional staff, operating charity organizations, establishing training institutions for clergy or educating the younger generation, etc. Without the availability and actual accessibility of an appropriate legal personality status, the long-term development prospects of religious and belief communities, in particular smaller groups may be in serious peril. I was informed that there is a possibility for religious communities to register as associations, but I have not yet been able to find out to which extend this option has actually been used.
Having had various discussions with Government representatives on the issue of registration, I am convinced that this is an area of concern which requires legislative and other measures. I would recommend that the envisaged new legal reforms (1) clarify that freedom of religion or belief, qua its status as a human right, precedes any acts of administrative approval and can be exercised by individuals and groups of people prior to, and independent of, any such acts of registration; and (2) give religious communities more easily accessible and reliable options to obtain a suitable status of legal personality to facilitate the free development of an appropriate infrastructure. The Government Committee for Religious Affairs should play a crucial role in instructing and training local authorities about the interpretation of relevant regulations in accordance to universal human right.
The issue of legal recourse
Article 30 of the 2013 Constitution enshrines everyone’s right to lodge complaints with competent State authorities. Indeed, the efficient realization of human rights, including freedom of religion or belief, largely depends on the availability of suitable legal recourse. Everyone should have recourse, without being required to meet undue thresholds or burdens, to legal instruments to be able to challenge decisions taken by the authorities if they feel their rights have been infringed upon. Independent courts should be entrusted with the assessment of such complaints, in accordance with all principles of due process. The main purpose of legal recourse is not to identify possible wrongdoings by individual members of the administration, but to ensure a consistent implementation of human rights for everyone.
When asking for examples of cases in which people have successfully challenged alleged infringements of their freedom of belief and religion, as enshrined in article 24 of the Constitution, I heard that such cases are not known in Viet Nam. Even members of the People’s Supreme Court were not aware of a single case. This is surprising – even more so against the background of quite a number of conflicts over land issues which have been brought to my attention. Some of these conflicts seem to involve a dimension of freedom of religion or belief, for instance, when land previously used for religious cemeteries or houses of worship has been taken for purposes of economic development.
When discussing the issue of legal recourse, reference was usually made to the possibility of filing petitions addressed to local levels up till higher levels of the administration. However, this option cannot count as equivalent to an independent judiciary in charge of securing everyone’s human rights, including in situations of conflict between individuals or groups of people and the administration. Although I heard about a few cases in which petitions filed with higher authorities, including the Prime Minister, have helped to ease conflicts, in many other cases, petitioners have not seen any reaction at all. In yet some other cases, the higher level of the authorities merely referred the issues back to the local authorities for reconsideration, i.e. the case may end up in a limbo. From the perspective of the rule of law, this situation is far from satisfactory.
Autonomy of religious and belief communities
Negative attitudes towards non-recognized religious communities
Government representatives repeatedly emphasized that religions can and should contribute to the development of the country, not least by promoting social, ethical and civic values. This expectation is reflected in the Ordinance on Belief and Religion which provides in article 2, second sentence: “Dignitaries and clergypersons shall have the responsibility to educate regularly believers about patriotism, exercise of civic rights and obligations, and the sense of law observance.”
Based on the assumption that religious values and the interests of the State largely coincide, many religions have become members of the Fatherland Front, led by the Communist Party of Viet Nam. The biggest religious organization within the Fatherland Front is the Viet Nam Buddhist Sangha (VBS). Other officially recognized religious communities also cooperate in large parts within the Fatherland Front.
When I discussed this issue with the VBS in its central office in Hanoi, I learned that the Sangha comprises nine schools of Buddhism originating from the Mahayana tradition (dominant in Viet Nam), the Theravada tradition and others. While cooperating in a spirit of solidarity, the various schools would also be able to maintain their distinctive characteristics and identities, including different linguistic heritages. This was corroborated in conversations held in two Khmer pagodas in Ho Chi Minh City which cherish the Theravada version of Buddhism. However, while acknowledging the internal diversity within the VBS, I noticed a very dismissive attitude towards Buddhist practices outside of the VBS. Some dignitaries operating within the VBS claimed they had never heard of independent Buddhist groups within Viet Nam. Others alluded to mere “private opinions” of some individuals driven by morally problematic ambitions which would not be worthy of serious attention. The ascription of trivial “selfish” interests to people practising Buddhism or other religions outside of the official channels was a feature repeatedly coming up in conversations. This seems to coincide with the frequent invocation of “majority interests” which, it was assumed, should prevail over the rights of minorities or individuals.
I would like to emphasize in this context that freedom of religion or belief is not merely a minority issue. As a human right, it relates to all human beings, regardless of whether they follow a majority religion or belong to a minority community or to no religious community at all. The treatment of minorities, however, deserves particular attention, since it is usually indicative of the general – tolerant or less tolerant – climate in a society. Where minority communities can operate freely and independently, members of a majority typically also have more space for practicing their religion in the way they see fit. And respect for the views of individuals, including dissident views, facilitates the free flow of ideas in a society in general, thereby also enriching the interaction of people within the majority. However, I have noticed that in some discussions “majority interests” were invoked with the obvious intention to dismiss claims of minorities as irrelevant or to even delegitimize them as morally problematic. This also happened when the issue of independent religious communities – such as the Unified Buddhist Church of Viet Nam (UBCV), independent groups of Hoa Hao, Cao Dai, Protestants and others came up.
During my meetings with representatives of independent Buddhist communities I heard complaints about ongoing repression, including police summons, house arrests, imprisonments and confiscation of property, which would prevent individuals from exercizing their freedom of religion or belief in even a minimal way. Although I have not been able to make an appropriate and detailed analysis of all their complaints, which would require much more information from all concerned parties, the general attitude of delegitimizing non-official religious practices, which I have encountered in many conversations, are clear indicators that independent Buddhist communities currently cannot exercise their freedom of religion or belief. Moreover, some Buddhist monks who identified themselves as “Khmer Krom” would wish to have more autonomy not only within the VBS but also outside of this official Buddhist umbrella. The situation of the independent communities of Hoa Hao Buddhism, too, seems to be difficult.
A religion hardly known outside of Viet Nam is Cao Dai, which combines traditions of Buddhism, Confucianism, Taoism and Christianity with some new teachings. As in the case of Buddhism, Cao Dai followers are divided between those who have become members of the Fatherland Front and those who insist on their independent religious practice. The relationship between the two groups seems to be tense. Whereas the officially recognized organizations of Cao Dai accuse dissenting groups of having a “separatist mind” and creating “confusion” among the people, the independent Cao Dai followers see the authenticity of their tradition jeopardized by Government interference which, they claim, has led to some imposed changes of the Cao Dai religion. While I am not in a position to assess the theological details of this conflict, I would expect that the Government ensure the free functioning of independent Cao Dai communities and facilitate their development in a way which they themselves see fit. The current situation of independent Cao Dai groups is certainly not in line with freedom of religion or belief, since the communities lack appropriate facilities for worship and teaching and allegedly face pressure to join the official organizations.
Training and appointment of clergy
The number of training institutions for the clergy of different religions – Buddhism, Catholicism, Protestantism, Cao Daism and others – has significantly increased in recent decades. I was informed by the Government that at present approximately 45 religious training institutions exist in the country. While religious communities decide on the main parts of the curriculum – i.e. the teachings of theological doctrines, practices and ceremonies, the history of the community and other issues – the curriculum also includes courses on the history and laws of Viet Nam and Marxism/ Leninism, provided for by the Ministry of Education and Training.
Religious communities can appoint and ordain their clergy in accordance with their own rules. They reportedly do not need approval for their decisions from the authorities, but are required to register ordained clergy. Concerning dismissals of clergy or monks, which are apparently rare, decisions are also generally taken by religious communities, in accordance with their religious laws. However, I also came across allegations of Government interference in some cases in which monks were defrocked. I have not been able to establish the details required for a clear assessment of such cases. The very limited options for autonomous religious community life, however, certainly leads to a structural situation in which appointments or dismissals may de facto be largely influenced by the interests of the Government.
Property and land issues
During the visit, many property issues were brought to my attention, not only by members of non-recognized communities, but also by representatives of communities which cooperate with the Government in the Fatherland Front. Many of these property claims concern real estate and/or land. In the interest of economic development and other modernization projects, some religious communities have lost – or are in danger of losing – large parts of their land. I repeatedly heard requests that property which had taken away from religious communities should be given back.
Usually property disputes require precise information of complicated details, which I have not been able to gather. I will therefore limit myself to a few general remarks. The availability of real estate and land is one of the basic preconditions for religious community life. Clear and well-established ownership thus becomes an important factor defining the autonomy of religious communities – or the lack of autonomy. The fact that all land belongs to the State creates an element of insecurity for communities. Furthermore, some communities show a strong cultural or religious attachment to particular pieces of land, for instance, the burial places of their ancestors. A special case in this context is the Cham community who practises a combination of Islam and Hinduism. The Cham people see themselves as an indigenous population and strive to be recognized under this category.
Representatives of the Government openly admitted that land conflicts exist in Viet Nam – as in many other countries. At the same time, they questioned whether such conflicts could affect freedom of religion or belief. At least in some cases, however, religious demands obviously play an important role. For instance, representatives of Protestant groups told me about cases in rural areas in which different Protestant parishes were merged into one single parish for purposes of “easier management”. Reportedly, such merging was not always handled in due respect for the distinct features of different Protestant denominations and the needs of parishioners.
Conflicts over land issues, in particular involving religious sentiments, always require sensitive handling in the interest to provide acceptable solutions for all interested parties. The previously mentioned lack of effective legal recourse – in particular within the judiciary – has strong relevance also for the situation of land and other property issues related to religious communities. In my conversations with representatives of various religious communities – including communities which cooperate with the Government within the Fatherland Front – I noticed high degrees of frustration about inefficient legal procedures. As a result, some religious communities feel they are largely left at the mercy of local authorities.
Religious practices in particular circumstances
Prison inmates
As previously mentioned, article 24 of the 2013 Constitution refers to all human beings rather than to citizens. It therefore also includes prisoners who, even if they may have temporary lost their full rights as citizens, should in any case be able to benefit from freedom of religion or belief as a universal human right. When discussing this issue I received conflicting information. Government agencies generally emphasized that prison inmates can practise their religion within the confines of the prison provided this does not negatively affect other prisoners and the general functions of prison life. Other people with experiences of prison life alleged that religious practices are hardly accommodated in prisons; even the reception and possession of religious books or materials would usually be prohibited. This issue certainly deserves more attention.
The institution of prison chaplains, i.e. clergy of different religions, who cater for the spiritual needs of prison inmates, on their requests, does not exist in Viet Nam. However, representatives of the Viet Nam Buddhist Sangha explained they would increasingly offer services in prisons, including lectures for the social and moral edification of prisoners. Catholic priests, too, have occasionally offered religious services to prison inmates. Protestant pastors with whom I discussed this issue said they were not aware of any spiritual assistance given to Protestant prison inmates.
Soldiers
The Vietnamese military does not have a system of military chaplains who regularly cater for the religious or spiritual needs of soldiers. Similarly to the situation in prisons, however, the VBS seems to get increasingly involved. I was told that Buddhist monks pray for soldiers who serve the nation under complicated conditions. They may also teach meditation technics which can help soldiers to better come to terms with their difficult task and living conditions.
Conscientious objection to compulsory military service is not known in Viet Nam, and the option of an alternative civilian service for individuals who object to taking arms for conscientious reasons does not exist.
Reports about violations of freedom of religion or belief
I have heard a number of serious allegations about concrete violations of freedom of religion or belief in Viet Nam. Reported violations include heavy-handed police raids; repeated invitations to “work sessions” with the police; close surveillance of religious activities; disruption of religious ceremonies and festivals; house arrests, at times over long periods; imprisonments, also sometimes over long periods; beatings and assaults; dismissals from employment; loss of social benefits; pressure exercised on family members; acts of vandalism; destructions of houses of worship, cemeteries and funeral sheds; confiscations of property; systematic pressure to give up certain religious activities and instead to operate within the official channels provided for religious practice; pressure to denounce one’s religion or belief. I also met with one prisoner of conscience in the prison in which he is currently detained.
To different degrees, such allegations came from members of independent Buddhist communities, individuals belonging to various Protestants communities (some of which have been officially registered), some local groups of Catholics, followers of independent organizations of Cao Dai, followers of some new religious teachings, like Duong Van Minh, and others. As a result of pressure and persecution, some people have left or fled the country on religious grounds. I would also like to underline, that official registration status with the Government is no guarantee that freedom of religion or belief is fully respected.
Let me clarify the fact that the purpose of a country visit of Special Rapporteurs is not to make comprehensive assessments of individual cases. A comprehensive analysis of individual cases would require much more information in order to get the full picture of relevant facts from the perspectives of all involved parties. Instead, the purpose of a visit by a Special Rapporteur is to assess the credibility of different allegations concerning human rights problems and abuses. Without prejudice to the accuracy of all specific facts of all individual cases brought to my attention, I am convinced that serious violations of freedom of religion or belief are a reality in Viet Nam – in particular, but not only, in rural areas.
This general assessment is not only based on interviews and documents provided by human rights defenders and members of different religious communities, it is also closely connected with the systematic observations made earlier in this press statement:
- the generally dismissive, negative attitude towards the rights of minorities and individuals practising religion outside of the established channels;
- the frequent invocation of unspecified “majority interests” or interests of “social order”;
- overly-broad limitation clauses concerning human rights in general and thus also freedom of belief and religion;
- vague formulations within the Penal Code, in particular Article 258 concerning the “abuse” of democratic freedoms;
- the absence of sufficiently efficient and accessible legal recourse within the judiciary, etc.
These conditions create a structural vulnerability for certain individuals and communities, which actually matches the reports about specific incidents.
I would like to underline in this context that in my many discussions with members of religious communities, some of which are formally registered with the authorities and even cooperate within the Fatherland Front, people have shown a general awareness of ongoing restrictions of freedom of religion or belief. It is all the more surprising that leading members of the judiciary apparently have never heard about any cases in which alleged infringements of freedom of religion or belief have been brought before a court.
An important aspect coming up in many discussions concerns the divide between urban and rural areas. The conditions of religious communities may considerably vary, according to different practices in different parts of the country. Moreover, it seems that policies taken by the Government Committee on Religious Affairs are not always efficiently communicated to the authorities at local levels.
Concluding remarks
The terms of reference for country visit by Special Rapporteurs inter alia include guarantees concerning “confidential and unsupervised contact with witnesses and other private persons” and “assurance by the Government that no persons, official or private individuals who have been in contact with the special rapporteur […] in the relation to the mandate will for this reason suffer threats, harassment or punishment or be subjected to judicial proceedings”. These conditions have not been respected, as I mentioned earlier and are in breach of the principle of confidentiality. This interrupted the later part of the visit.
This interruption is all the more regrettable as I have noticed some positive developments at the central level. Most representatives of religious communities agreed that, in spite of ongoing serious problems, their space for religious practices has increased in recent years. Religious communities which had been forbidden post-1975 are now allowed to operate. Moreover, some representatives of Government agencies expressed their willingness to consider substantive revisions within the process of replacing the current Ordinance on Belief and Religion by passing a law governing these issues. Indeed, this opportunity should not be missed. It might become a turning point for Viet Nam’s protection of freedom of religion or belief.
A litmus test for the development of freedom of religion or belief in Viet Nam is the conditions of independent religious communities. Under the current situation, their possibilities to operate as independent communities are extremely unsafe and restricted, in clear violation of article 18 of the ICCPR to which Viet Nam is a State Party. The upcoming law on religious affairs should clarify that registration with Government agencies is an offer rather than a legal requirement. At the same time, communities should have easily accessible and reliable options to obtain legal personality status in order to build an appropriate infrastructure. Another obvious priority concerns the availability of effective and accessible legal recourse needed to rectify possible infringements on the freedom of religion or belief of individuals or groups.
Let me conclude by reiterating my thanks to the Government of Viet Nam for having invited me to visit. I trust that the Government will honour its guarantee that none of the persons with whom I worked during the visit and with whom I have been in contact in relation to the mandate will be threatened, harassed or punished or be subject to judicial proceedings after the country visit. I will maintain in contact with them and monitor their safety. Any incidents of reprisal will be reported to the Human Rights Council and the General Assembly.
I am happy to offer my expertise as Special Rapporteur to the Government of Viet Nam as it works to improve the legal and infrastructural conditions for the enjoyment of freedom of religion or belief for everyone. I will also continue to work in constructive spirit with the Government.
Notes:
1. The final version of new constitution was adopted by the National Assembly on 28 November 2013.
2. See Article 38 of the Ordinance: “In the case where an international treaty concluded, or acceded to, by the Socialist Republic of Vietnam contains a stipulation that contravenes stipulations by this Ordinance, the stipulation of the international treaty shall prevail.”
3. Article 18, paragraph 3 of the ICCPR.
4. Article 14, paragraph 2 of the 2013 Constitution.
5. Article 16 paragraph 1 of the Ordinance on Belief and Religion reads as follows:
1. An organization shall be recognized as a religious organization if it meets all the following conditions:
Being an organization of people sharing the same religious belief, of which the religious dogmas, canon laws and rites are not contrary to the fine customs and habits and the interests of the nation;
Having a charter and/or statutes depicting the goal, objectives and action orientation that are in close association with the nation and not contrary to stipulations by the law;
Having its religious activities registered and conducted on a stable basis;
Having a lawful office, organization and representative;
Having a name not duplicating that of any other religious organization that has been recognized by the competent State authority.
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August 2, 2014
Press Statement on the visit to the Socialist Republic of Viet Nam by the Special Rapporteur on freedom of religion or belief
by Nhan Quyen • [Human Rights]
Heiner Bielefeldt | OHCHR
Introduction
In my capacity as the United Nations Special Rapporteur on freedom of religion or belief, I was invited by the Government of the Socialist Republic of Viet Nam to conduct a country visit from 21 to 31 July 2014.
First of all, I thank the Government for inviting me here and maintaining constructive cooperation with my mandate. My esteemed predecessor, the late Abdelfattah Amor, had also visited Viet Nam in 1998. Since 2010, Viet Nam has actively engaged with the Special Procedures and invited six mandate holders, including myself, to conduct a country visit. Viet Nam is also a member of the Human Rights Council. The Ministry of Foreign Affairs has been most helpful throughout the preparation of the visit and the visit itself. It also facilitated a meeting with a prisoner.
I am grateful to all interlocutors from the legislative, administrative and judiciary branch of the Government, religious communities or institutions (recognized and unrecognized), the diplomatic community and UN agencies. I would like to thank the UNDP in Hanoi for their kind logistical support. Discussions held in Hanoi, Tuyen Quang, Ho Chi Minh City and Vinh Long were generally open, frank and constructive.
The planned visits to An Giang, Gia Lai and Kon Tum provinces were unfortunately interrupted from 28 to 30 July. I received credible information that some individuals whom I wanted to meet with had been either under heavy surveillance, warned, intimidated, harassed or prevented from travelling by the police. Even those who successfully met with me were not free from a certain degree of police surveillance or questioning. Moreover, I was closely monitored of my whereabouts by undeclared “security or police agents”, while the privacy and confidentiality of some meetings could have been compromised. All these incidents are in clear violation of the terms of reference of any country visit.
Today, I present my preliminary findings and some main observations to which I wish to draw your attention. This press statement is not to be confused with the final report. The formal report is to be presented to the 28th session of the Human Rights Council in March 2015. In preparation of the report, I will continue to engage with and work in consultation with the Government and all relevant stakeholders to receive more information and clarification, especially on issues that relate to parts of the country I could not visit.
Brief overview on the religious landscape in Viet Nam
Viet Nam is home to a broad variety of religions and beliefs. The Government Committee on Religious Affairs informed me that there are currently 37 registered religious organizations in the country. According to the official statistics presented by the Government, the overall number of followers of recognized religions is about 24 million out of a population of almost 90 million. Formally recognized religious communities include 11 million Buddhists, 6.2 million Catholics, 1.4 million Protestants, 4.4 million Cao Dai followers, 1.3 million Hoa Hao Buddhists as well as 75,000 Muslims, 7000 Baha’ís, 1500 Hindus and others. The official number of places of worship comprises 26,387 pagodas, temples, churches and other religious facilities. Viet Nam takes pride in having hosted international conferences of religious leaders, in particular United Nation Day of Vesak, a summit of Buddhist dignitaries which took place in May 2014. I was also informed that the people of Viet Nam comprise 54 different ethnic groups. Ethic minority status and membership of a religious minority sometimes overlap.
While the majority of Vietnamese do not belong to one of the officially recognized religious communities, they may nonetheless – occasionally or regularly – practise certain traditional rituals, usually referred to in Viet Nam under the term “belief”. Many of those traditional rituals express veneration of ancestors. Moreover, there is also a reality of religious faiths and practices outside of the officially recognized religious communities. To get a clear and comprehensive picture of this reality is difficult, if not impossible. Whereas some Government experts estimated the number of followers of non-registered communities to be very low, I also heard conjectures that the number of people practising religions outside of registered communities – or wishing to do so – may be up to millions. Apart from very different estimates concerning numbers, I also received conflicting information with regard to the conditions under which people can enjoy their human right to freedom of thought, conscience, religion or belief.
Many interlocutors emphasized the fact that the conditions for the exercise of religious freedom have generally improved in Viet Nam in comparison to the situation post-1975. This assessment was largely shared by representatives of religious communities who acknowledged that, despite ongoing challenges, they now have generally more space for practising religion than in the past. At the same time, the conditions under which individuals or groups can practise their religion or belief are unpredictable and often depend on good will of Government agencies, not least the local authorities. Moreover, members of religious minorities without official recognition continue to face enormous difficulties in exercising their rights to freedom of religion or belief, especially where their religious practices or rituals are considered not to match the “legitimate interests of the majority” – a phrase often invoked in some of the discussions.
Relevant legal provisions and their implementation
Legal norms regulating the practice of religion or belief
Viet Nam has ratified most international human rights instruments, including the International Covenant on Civil and Political Rights, whose article 18 protects freedom of thought, conscience, religion or belief broadly.
The newly amended Vietnamese Constitution1 covers in its second chapter “human rights and citizen’s fundamental rights and duties”. In this context, the 2013 Constitution also refers to freedom of belief or religion in article 24. Representatives of the Government repeatedly highlighted that rights holders of this provision are all human beings, whereas the respective provision within the 1992 Constitution was confined to citizens of Viet Nam. This has been presented as an indicator of a generally more positive attitude towards freedom of religion or belief. Article 24 reads as follows:
“1. Every one shall enjoy freedom of belief and of religion; he can follow any religion or follow none. All religions are equal before the law.
2. The State respects and protects freedom of belief and of religion.
3. No one has the right to infringe on the freedom of belief and religion or to take advantage of belief and religion to violate the law.”
Viet Nam does not have a law regulating religious affairs. The most relevant legal document is the Ordinance on Belief and Religion adopted on 18 June 2004. Decree no. 92, of 8 November 2012, further specifies the provisions contained in the Ordinance. As an important clarification within the Ordinance on Belief and Religion, Article 38 confirms the priority of international agreements over provisions of the Ordinance whenever they differ2.
I have learned that a proposal to pass a law on religious affairs based on the current Ordinance will be submitted in 2015 and is expected to be adopted in 2016. Apart from the higher legal status of a law in comparison to an ordinance, the process of creating a new comprehensive law might offer an opportunity to introduce substantive revisions with the purpose of strengthening the right to freedom of religion or belief and its implementation in practice. When discussing this issue with Government experts on religious affairs, there have been indications that land issues will be better addressed while the freedom for foreigners to practice their religions or belief will also become easier. Others have also expressed their willingness to consider substantive changes to overcome the restrictive language of the 2004 Ordinance.
Restrictions of freedom of religion or belief
According to international standards, the exercise of the human right to freedom of religion or belief is not without possible limitations. At the same time, article 18 of the International Covenant on Civil and Political Rights (ICCPR) lists a number of criteria all of which must be met for such limitations to be legitimate. Strict observance of all of these criteria is crucial to ensure that freedom of religion or belief becomes a reality.
Limitation clauses as provided in the relevant legal norms of Viet Nam are much broader than the limitation clauses enshrined in the ICCPR. Overly-broad limitation clauses may blur the contours of freedom of religion or belief thereby seriously jeopardizing its implementation in practice. What is missing in the Vietnamese legal norms concerning religion, first of all, is a clarification that the internal dimension of a person’s religious, moral or philosophical conviction – usually termed the “forum internum” – must be respected unconditionally and can never be exposed to any restrictions or interferences for whatever reasons, even in situations of a serious crisis or an emergency. The unconditional protection of the forum internum reflects the insight that forcing human beings to feign a faith which is not authentic or denounce their deeply held convictions may undermine their self-respect. The prohibition of any coercive interference with the inner nucleus of a person’s religious, moral or philosophical convictions therefore has the same elevated status in international law as the prohibition of slavery or the prohibition of torture. These are absolute prohibitions with no exceptions. In contrast, Article 24 of the 2013 Constitution, while making reference to freedom of belief and religion in general terms, does not provide for a specific protection of the forum internum dimension of freedom of religion or belief.
Unlike the forum internum, manifestations of religions or beliefs in the social sphere (“forum externum”) are not protected unconditionally by international law. It is therefore all the more important to specify the conditions for limitations in a clear and predictable manner. This should be done in the understanding that freedom of religion or belief, in all its individual and communitarian dimensions, has the normative status of a universal human right. The relationship between this freedom and its limitations thus should be seen as a relationship between rule and exception. Accordingly, the burden or argumentation does not fall on those who wish to exercise their right to freedom of religion or belief: it rests with those who deem limitations necessary. In case of doubt the rule prevails, and exceptions always require an extra burden of argumentation, both at the level of empirical evidence and the level of normative reasoning.
In discussions with Government representatives I frequently heard broad references to “the Vietnamese law” in general. However, in order to meet the conditions for limitations set out in article 18 of the ICCPR, limitations must be more specific and fulfil additional criteria. Apart from being legally prescribed in a clear, precise and predictable manner, the limitations must be necessary to pursue a legitimate aim – the protection of “public safety, order, health, or morals or the fundamental rights and freedoms of others”3. Moreover, limitations must strictly remain with the realm of proportionality which inter alia means they should always be confined to a minimum degree of interference. These and other criteria are prescribed with the purpose of safeguarding the substance of freedom of religion or belief also in situations of a (seeming or factual) collision with other rights or important public interests.
By comparison, the relevant legal documents of Viet Nam give Government agencies broad space to regulate, limit, restrict of forbid the exercise of freedom of religion or belief. Article 14 of the 2013 Constitution lists a number of reasons for restricting human rights and citizens’ rights which, I presume, also apply to freedom of religion or belief. While the possibility to restrict human rights in the interest of “national defence, national security, social order and security, social morality and the health of the community”4 already differs from the purposes listed in article 18 of the ICCPR, the Ordinance on Belief and Religion also makes reference to purposes, such as “patriotism”, “national unity”, “people’s unity” and “national cultural traditions”. Furthermore, according to article 8, paragraph 2 of the Ordinance, “no one shall be permitted to abuse the right to freedom of belief and religion to undermine the peace, independence and unity of the country, to instigate violence or carry out war propaganda, or propaganda against State laws or policies; or to sow division among the people and religions; to disturb public order, to encroach upon the life, health, human dignity, honour or property of others, or to obstruct the exercise by the people of their civic rights or obligations; to carry out superstitious activities; or to commit other breaches of the law”.
During my discussions with Government officials of different agencies, including senior representatives of the judiciary, I heard many references to such overly-broad restrictions. The invocation of unspecified “social interests” may even lead to criminal prosecution, in accordance to Article 258 of the Penal Code. Its first paragraph reads as follows: “Those who abuse the rights to freedom of speech, freedom of press, freedom of belief, religion, assembly, association and other democratic freedoms to infringe upon the interest of the State, the legitimate rights and interests of organizations and/or citizens shall be subject to warning, non-custodial reform for up to three years or a prison term of between six months and three years.” What I find particularly concerning in this paragraph is the absence of specified acts that would amount to an “abuse” of religious freedom of other democratic freedoms. Members of the People’s Supreme Court did not give any further specifications as to the meaning of the term “abuse”. The wide and vague formulation in Article 258 gives the relevant authorities a carte blanche to sanction people for all sorts of activities – and their underlying attitudes – which are deemed to somehow run counter to the interest of the State. From the many discussions that I have had, this is not a merely theoretical problem, as article 258 of the Penal Code has been invoked frequently in practice and has been applied to restrict freedom of religion or belief and other human rights. When the question of prisoners of conscience was raised, I was told that no such case exists. Given the vague formulations and the high number of cases charged under article 258 of the Penal Code, one wonders how the authorities can preclude such a possibility.
Administrative stipulations on religious practices
The Ordinance on Belief and Religion contains a broad number of regulations that the religious communities have to comply with in order to be able to operate. These regulations receive further specification in Decree no. 92. For instance, religious communities are requested to get registration status with the Government Committee for Religious Affairs; they have to apply for specific permits for the construction or renovation of houses of worship; they have to present to the local authorities an annual overview of planned activities; they have to inform the authorities about the ordainment of religious clergy; they have to get approval from the relevant local authorities to conduct public ceremonies, etc. The stipulations contained in the Ordinance and the Decree include obligations concerning information and notification as well as provisions for formal approval before conducting certain religious activities. The Decree also specifies the timeframes within which the authorities are requested to respond to applications submitted to them. In the case of a negative decision, they are obliged to state the reasons.
My preliminary findings are not meant to provide a comprehensive assessment of the very detailed administrative provisions contained in the Ordinance and the Decree as to whether they appropriately reflect respect for freedom of religion or belief. Instead, I will concentrate on a problem which came up in almost all of ours discussions, i.e. the requirement for religious communities to receive registration status with the authorities. According to article 16 of the Ordinance, organizations are required to meet a number of criteria to obtain the status of a legally recognized religious organization. Inter alia, these conditions are aimed to ensuring respect for the “fine customs and habits and interests of the nation”5. Without going into procedural and substantive details, I would like to focus on two particularly important aspects.
The first aspect concerns the nature of registration. Is it an offer or is it a formal requirement? When discussing this question, I received different answers, and there seems to be some lack of clarity. Whereas a number of Government representatives unambiguously stated that without legal registration by the authorities communities would not be entitled to operate, others indicated that a non-registered community could be allowed to exercise some basic religious functions, such as holding religious gatherings in private homes. Even within this more accommodating interpretation, however, the scope of freedom of religion or belief strikes me as remaining extremely limited and unclear.
In this context, the term “recognition”, as used of the Ordinance and mentioned in many conversations, may warrant a short clarification. The exercise of the human right to freedom of religion or belief, by individuals and/or in community with others, cannot be made dependent on any specific acts of administrative recognition or approval. As a universal right, freedom of religion or belief inheres in all human beings and thus has a normative status prior to any administrative acts and procedures whatsoever. The preamble of the 1948 Universal Declaration of Human Rights starts with “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family”. Obviously, “recognition” here points to the basic insight that any meaningful interaction among human beings presupposes respect for human dignity and human rights. “Recognition” in this fundamental sense of respect for human dignity and human rights thus precedes any “recognition” in terms of specific administrative acts.
Accordingly, the right of an individual or group to their freedom of religion or belief can never be “created” by any administrative procedures. Rather, it is the other way around: registration should serve this human right, which itself must be respected as preceding any registration. In keeping with this general understanding, registration should be an offer by the State, not a compulsory legal requirement. The situation of non-registered religious communities thus assumes the quality of an important test question about the understanding of the normative status of freedom of religion or belief in general.
The second point I would like to make concerns the availability of some alternative legal personality status for communities which are not registered as religious organizations. Given the rather high threshold set out by article 16 of the Ordinance, it seems important that religious or belief communities have a reliable option to obtain some alternative form of legal personality status, if they so wish. Under freedom of religion or belief, States have a responsibility to provide an appropriate legal and institutional infrastructure which allows religious and belief communities to operate freely, without undue burdens and without discrimination. This includes the option for religious and belief communities to obtain legal personality status which they may need to undertake important community functions, such as purchasing real estate, employing professional staff, operating charity organizations, establishing training institutions for clergy or educating the younger generation, etc. Without the availability and actual accessibility of an appropriate legal personality status, the long-term development prospects of religious and belief communities, in particular smaller groups may be in serious peril. I was informed that there is a possibility for religious communities to register as associations, but I have not yet been able to find out to which extend this option has actually been used.
Having had various discussions with Government representatives on the issue of registration, I am convinced that this is an area of concern which requires legislative and other measures. I would recommend that the envisaged new legal reforms (1) clarify that freedom of religion or belief, qua its status as a human right, precedes any acts of administrative approval and can be exercised by individuals and groups of people prior to, and independent of, any such acts of registration; and (2) give religious communities more easily accessible and reliable options to obtain a suitable status of legal personality to facilitate the free development of an appropriate infrastructure. The Government Committee for Religious Affairs should play a crucial role in instructing and training local authorities about the interpretation of relevant regulations in accordance to universal human right.
The issue of legal recourse
Article 30 of the 2013 Constitution enshrines everyone’s right to lodge complaints with competent State authorities. Indeed, the efficient realization of human rights, including freedom of religion or belief, largely depends on the availability of suitable legal recourse. Everyone should have recourse, without being required to meet undue thresholds or burdens, to legal instruments to be able to challenge decisions taken by the authorities if they feel their rights have been infringed upon. Independent courts should be entrusted with the assessment of such complaints, in accordance with all principles of due process. The main purpose of legal recourse is not to identify possible wrongdoings by individual members of the administration, but to ensure a consistent implementation of human rights for everyone.
When asking for examples of cases in which people have successfully challenged alleged infringements of their freedom of belief and religion, as enshrined in article 24 of the Constitution, I heard that such cases are not known in Viet Nam. Even members of the People’s Supreme Court were not aware of a single case. This is surprising – even more so against the background of quite a number of conflicts over land issues which have been brought to my attention. Some of these conflicts seem to involve a dimension of freedom of religion or belief, for instance, when land previously used for religious cemeteries or houses of worship has been taken for purposes of economic development.
When discussing the issue of legal recourse, reference was usually made to the possibility of filing petitions addressed to local levels up till higher levels of the administration. However, this option cannot count as equivalent to an independent judiciary in charge of securing everyone’s human rights, including in situations of conflict between individuals or groups of people and the administration. Although I heard about a few cases in which petitions filed with higher authorities, including the Prime Minister, have helped to ease conflicts, in many other cases, petitioners have not seen any reaction at all. In yet some other cases, the higher level of the authorities merely referred the issues back to the local authorities for reconsideration, i.e. the case may end up in a limbo. From the perspective of the rule of law, this situation is far from satisfactory.
Autonomy of religious and belief communities
Negative attitudes towards non-recognized religious communities
Government representatives repeatedly emphasized that religions can and should contribute to the development of the country, not least by promoting social, ethical and civic values. This expectation is reflected in the Ordinance on Belief and Religion which provides in article 2, second sentence: “Dignitaries and clergypersons shall have the responsibility to educate regularly believers about patriotism, exercise of civic rights and obligations, and the sense of law observance.”
Based on the assumption that religious values and the interests of the State largely coincide, many religions have become members of the Fatherland Front, led by the Communist Party of Viet Nam. The biggest religious organization within the Fatherland Front is the Viet Nam Buddhist Sangha (VBS). Other officially recognized religious communities also cooperate in large parts within the Fatherland Front.
When I discussed this issue with the VBS in its central office in Hanoi, I learned that the Sangha comprises nine schools of Buddhism originating from the Mahayana tradition (dominant in Viet Nam), the Theravada tradition and others. While cooperating in a spirit of solidarity, the various schools would also be able to maintain their distinctive characteristics and identities, including different linguistic heritages. This was corroborated in conversations held in two Khmer pagodas in Ho Chi Minh City which cherish the Theravada version of Buddhism. However, while acknowledging the internal diversity within the VBS, I noticed a very dismissive attitude towards Buddhist practices outside of the VBS. Some dignitaries operating within the VBS claimed they had never heard of independent Buddhist groups within Viet Nam. Others alluded to mere “private opinions” of some individuals driven by morally problematic ambitions which would not be worthy of serious attention. The ascription of trivial “selfish” interests to people practising Buddhism or other religions outside of the official channels was a feature repeatedly coming up in conversations. This seems to coincide with the frequent invocation of “majority interests” which, it was assumed, should prevail over the rights of minorities or individuals.
I would like to emphasize in this context that freedom of religion or belief is not merely a minority issue. As a human right, it relates to all human beings, regardless of whether they follow a majority religion or belong to a minority community or to no religious community at all. The treatment of minorities, however, deserves particular attention, since it is usually indicative of the general – tolerant or less tolerant – climate in a society. Where minority communities can operate freely and independently, members of a majority typically also have more space for practicing their religion in the way they see fit. And respect for the views of individuals, including dissident views, facilitates the free flow of ideas in a society in general, thereby also enriching the interaction of people within the majority. However, I have noticed that in some discussions “majority interests” were invoked with the obvious intention to dismiss claims of minorities as irrelevant or to even delegitimize them as morally problematic. This also happened when the issue of independent religious communities – such as the Unified Buddhist Church of Viet Nam (UBCV), independent groups of Hoa Hao, Cao Dai, Protestants and others came up.
During my meetings with representatives of independent Buddhist communities I heard complaints about ongoing repression, including police summons, house arrests, imprisonments and confiscation of property, which would prevent individuals from exercizing their freedom of religion or belief in even a minimal way. Although I have not been able to make an appropriate and detailed analysis of all their complaints, which would require much more information from all concerned parties, the general attitude of delegitimizing non-official religious practices, which I have encountered in many conversations, are clear indicators that independent Buddhist communities currently cannot exercise their freedom of religion or belief. Moreover, some Buddhist monks who identified themselves as “Khmer Krom” would wish to have more autonomy not only within the VBS but also outside of this official Buddhist umbrella. The situation of the independent communities of Hoa Hao Buddhism, too, seems to be difficult.
A religion hardly known outside of Viet Nam is Cao Dai, which combines traditions of Buddhism, Confucianism, Taoism and Christianity with some new teachings. As in the case of Buddhism, Cao Dai followers are divided between those who have become members of the Fatherland Front and those who insist on their independent religious practice. The relationship between the two groups seems to be tense. Whereas the officially recognized organizations of Cao Dai accuse dissenting groups of having a “separatist mind” and creating “confusion” among the people, the independent Cao Dai followers see the authenticity of their tradition jeopardized by Government interference which, they claim, has led to some imposed changes of the Cao Dai religion. While I am not in a position to assess the theological details of this conflict, I would expect that the Government ensure the free functioning of independent Cao Dai communities and facilitate their development in a way which they themselves see fit. The current situation of independent Cao Dai groups is certainly not in line with freedom of religion or belief, since the communities lack appropriate facilities for worship and teaching and allegedly face pressure to join the official organizations.
Training and appointment of clergy
The number of training institutions for the clergy of different religions – Buddhism, Catholicism, Protestantism, Cao Daism and others – has significantly increased in recent decades. I was informed by the Government that at present approximately 45 religious training institutions exist in the country. While religious communities decide on the main parts of the curriculum – i.e. the teachings of theological doctrines, practices and ceremonies, the history of the community and other issues – the curriculum also includes courses on the history and laws of Viet Nam and Marxism/ Leninism, provided for by the Ministry of Education and Training.
Religious communities can appoint and ordain their clergy in accordance with their own rules. They reportedly do not need approval for their decisions from the authorities, but are required to register ordained clergy. Concerning dismissals of clergy or monks, which are apparently rare, decisions are also generally taken by religious communities, in accordance with their religious laws. However, I also came across allegations of Government interference in some cases in which monks were defrocked. I have not been able to establish the details required for a clear assessment of such cases. The very limited options for autonomous religious community life, however, certainly leads to a structural situation in which appointments or dismissals may de facto be largely influenced by the interests of the Government.
Property and land issues
During the visit, many property issues were brought to my attention, not only by members of non-recognized communities, but also by representatives of communities which cooperate with the Government in the Fatherland Front. Many of these property claims concern real estate and/or land. In the interest of economic development and other modernization projects, some religious communities have lost – or are in danger of losing – large parts of their land. I repeatedly heard requests that property which had taken away from religious communities should be given back.
Usually property disputes require precise information of complicated details, which I have not been able to gather. I will therefore limit myself to a few general remarks. The availability of real estate and land is one of the basic preconditions for religious community life. Clear and well-established ownership thus becomes an important factor defining the autonomy of religious communities – or the lack of autonomy. The fact that all land belongs to the State creates an element of insecurity for communities. Furthermore, some communities show a strong cultural or religious attachment to particular pieces of land, for instance, the burial places of their ancestors. A special case in this context is the Cham community who practises a combination of Islam and Hinduism. The Cham people see themselves as an indigenous population and strive to be recognized under this category.
Representatives of the Government openly admitted that land conflicts exist in Viet Nam – as in many other countries. At the same time, they questioned whether such conflicts could affect freedom of religion or belief. At least in some cases, however, religious demands obviously play an important role. For instance, representatives of Protestant groups told me about cases in rural areas in which different Protestant parishes were merged into one single parish for purposes of “easier management”. Reportedly, such merging was not always handled in due respect for the distinct features of different Protestant denominations and the needs of parishioners.
Conflicts over land issues, in particular involving religious sentiments, always require sensitive handling in the interest to provide acceptable solutions for all interested parties. The previously mentioned lack of effective legal recourse – in particular within the judiciary – has strong relevance also for the situation of land and other property issues related to religious communities. In my conversations with representatives of various religious communities – including communities which cooperate with the Government within the Fatherland Front – I noticed high degrees of frustration about inefficient legal procedures. As a result, some religious communities feel they are largely left at the mercy of local authorities.
Religious practices in particular circumstances
Prison inmates
As previously mentioned, article 24 of the 2013 Constitution refers to all human beings rather than to citizens. It therefore also includes prisoners who, even if they may have temporary lost their full rights as citizens, should in any case be able to benefit from freedom of religion or belief as a universal human right. When discussing this issue I received conflicting information. Government agencies generally emphasized that prison inmates can practise their religion within the confines of the prison provided this does not negatively affect other prisoners and the general functions of prison life. Other people with experiences of prison life alleged that religious practices are hardly accommodated in prisons; even the reception and possession of religious books or materials would usually be prohibited. This issue certainly deserves more attention.
The institution of prison chaplains, i.e. clergy of different religions, who cater for the spiritual needs of prison inmates, on their requests, does not exist in Viet Nam. However, representatives of the Viet Nam Buddhist Sangha explained they would increasingly offer services in prisons, including lectures for the social and moral edification of prisoners. Catholic priests, too, have occasionally offered religious services to prison inmates. Protestant pastors with whom I discussed this issue said they were not aware of any spiritual assistance given to Protestant prison inmates.
Soldiers
The Vietnamese military does not have a system of military chaplains who regularly cater for the religious or spiritual needs of soldiers. Similarly to the situation in prisons, however, the VBS seems to get increasingly involved. I was told that Buddhist monks pray for soldiers who serve the nation under complicated conditions. They may also teach meditation technics which can help soldiers to better come to terms with their difficult task and living conditions.
Conscientious objection to compulsory military service is not known in Viet Nam, and the option of an alternative civilian service for individuals who object to taking arms for conscientious reasons does not exist.
Reports about violations of freedom of religion or belief
I have heard a number of serious allegations about concrete violations of freedom of religion or belief in Viet Nam. Reported violations include heavy-handed police raids; repeated invitations to “work sessions” with the police; close surveillance of religious activities; disruption of religious ceremonies and festivals; house arrests, at times over long periods; imprisonments, also sometimes over long periods; beatings and assaults; dismissals from employment; loss of social benefits; pressure exercised on family members; acts of vandalism; destructions of houses of worship, cemeteries and funeral sheds; confiscations of property; systematic pressure to give up certain religious activities and instead to operate within the official channels provided for religious practice; pressure to denounce one’s religion or belief. I also met with one prisoner of conscience in the prison in which he is currently detained.
To different degrees, such allegations came from members of independent Buddhist communities, individuals belonging to various Protestants communities (some of which have been officially registered), some local groups of Catholics, followers of independent organizations of Cao Dai, followers of some new religious teachings, like Duong Van Minh, and others. As a result of pressure and persecution, some people have left or fled the country on religious grounds. I would also like to underline, that official registration status with the Government is no guarantee that freedom of religion or belief is fully respected.
Let me clarify the fact that the purpose of a country visit of Special Rapporteurs is not to make comprehensive assessments of individual cases. A comprehensive analysis of individual cases would require much more information in order to get the full picture of relevant facts from the perspectives of all involved parties. Instead, the purpose of a visit by a Special Rapporteur is to assess the credibility of different allegations concerning human rights problems and abuses. Without prejudice to the accuracy of all specific facts of all individual cases brought to my attention, I am convinced that serious violations of freedom of religion or belief are a reality in Viet Nam – in particular, but not only, in rural areas.
This general assessment is not only based on interviews and documents provided by human rights defenders and members of different religious communities, it is also closely connected with the systematic observations made earlier in this press statement:
These conditions create a structural vulnerability for certain individuals and communities, which actually matches the reports about specific incidents.
I would like to underline in this context that in my many discussions with members of religious communities, some of which are formally registered with the authorities and even cooperate within the Fatherland Front, people have shown a general awareness of ongoing restrictions of freedom of religion or belief. It is all the more surprising that leading members of the judiciary apparently have never heard about any cases in which alleged infringements of freedom of religion or belief have been brought before a court.
An important aspect coming up in many discussions concerns the divide between urban and rural areas. The conditions of religious communities may considerably vary, according to different practices in different parts of the country. Moreover, it seems that policies taken by the Government Committee on Religious Affairs are not always efficiently communicated to the authorities at local levels.
Concluding remarks
The terms of reference for country visit by Special Rapporteurs inter alia include guarantees concerning “confidential and unsupervised contact with witnesses and other private persons” and “assurance by the Government that no persons, official or private individuals who have been in contact with the special rapporteur […] in the relation to the mandate will for this reason suffer threats, harassment or punishment or be subjected to judicial proceedings”. These conditions have not been respected, as I mentioned earlier and are in breach of the principle of confidentiality. This interrupted the later part of the visit.
This interruption is all the more regrettable as I have noticed some positive developments at the central level. Most representatives of religious communities agreed that, in spite of ongoing serious problems, their space for religious practices has increased in recent years. Religious communities which had been forbidden post-1975 are now allowed to operate. Moreover, some representatives of Government agencies expressed their willingness to consider substantive revisions within the process of replacing the current Ordinance on Belief and Religion by passing a law governing these issues. Indeed, this opportunity should not be missed. It might become a turning point for Viet Nam’s protection of freedom of religion or belief.
A litmus test for the development of freedom of religion or belief in Viet Nam is the conditions of independent religious communities. Under the current situation, their possibilities to operate as independent communities are extremely unsafe and restricted, in clear violation of article 18 of the ICCPR to which Viet Nam is a State Party. The upcoming law on religious affairs should clarify that registration with Government agencies is an offer rather than a legal requirement. At the same time, communities should have easily accessible and reliable options to obtain legal personality status in order to build an appropriate infrastructure. Another obvious priority concerns the availability of effective and accessible legal recourse needed to rectify possible infringements on the freedom of religion or belief of individuals or groups.
Let me conclude by reiterating my thanks to the Government of Viet Nam for having invited me to visit. I trust that the Government will honour its guarantee that none of the persons with whom I worked during the visit and with whom I have been in contact in relation to the mandate will be threatened, harassed or punished or be subject to judicial proceedings after the country visit. I will maintain in contact with them and monitor their safety. Any incidents of reprisal will be reported to the Human Rights Council and the General Assembly.
I am happy to offer my expertise as Special Rapporteur to the Government of Viet Nam as it works to improve the legal and infrastructural conditions for the enjoyment of freedom of religion or belief for everyone. I will also continue to work in constructive spirit with the Government.
Notes:
1. The final version of new constitution was adopted by the National Assembly on 28 November 2013.
2. See Article 38 of the Ordinance: “In the case where an international treaty concluded, or acceded to, by the Socialist Republic of Vietnam contains a stipulation that contravenes stipulations by this Ordinance, the stipulation of the international treaty shall prevail.”
3. Article 18, paragraph 3 of the ICCPR.
4. Article 14, paragraph 2 of the 2013 Constitution.
5. Article 16 paragraph 1 of the Ordinance on Belief and Religion reads as follows:
1. An organization shall be recognized as a religious organization if it meets all the following conditions:
Being an organization of people sharing the same religious belief, of which the religious dogmas, canon laws and rites are not contrary to the fine customs and habits and the interests of the nation;
Having a charter and/or statutes depicting the goal, objectives and action orientation that are in close association with the nation and not contrary to stipulations by the law;
Having its religious activities registered and conducted on a stable basis;
Having a lawful office, organization and representative;
Having a name not duplicating that of any other religious organization that has been recognized by the competent State authority.