At 8
a.m of August 08, 2008
Dear Jury (Panel),
I,
lawyer Le Tran Luat, who am approved by the People’s Supreme Court to defend Mr.
Pham Ba Hai, the activist for democracy.
The
reason I don’t call Mr. Pham Ba Hai the defendant but the activist for
democracy is that I do believe that his actions which have just been accused by
the first instance level are not guilty if not mean that they will bring lots
of good results for the evolution of democracy in Vietnam that a democratic
society is the desire of the people of Vietnam and the essence, the goal of the
Socialist Republic of Vietnam.
Dear Jury,
First
of all, I, together with the Procuracy to elucidate:
1. What is to oppose the Socialist
Republic of Vietnam?
I
would begin to advocate for Mr. Pham Ba Hai by debate against the Procuracyon
the legal concept of “the Socialist Republic of Vietnam” and the so-called “against
the Socialist Republic of Vietnam”. I would repeat that I want to have a debate
on this concept from the legal point of view. I cannot find any guidelines of
the Supreme Court as well as the Congress interpreting legal term, “against the
Socialist Republic of Vietnam”, which is expressed with what specific acts and
what its content of expression? Needing to remind that one of the factors/elementsthat
constitutes crime is the object or known as infringed legal relations. So the
Procurary must point outspecifically what social relation or group of social
relations Mr. Pham Ba Hai’s actions have infringed according to the Article 88.
Dear Jury,
To further
justify Mr. Pham Ba Hai’s actions, I find it necessary to raise how the legal
concept of “the Socialist Republic of Vietnam” should be understood thoroughly.
The
August 1945 Revolution abolished feudalism, terminating permanently the
structure of “hereditary succession” to build a democratic state in which power belongs to the people through the electoral
mechanism, setting criteria of democracy, equality, justice, civilization, comfortable
life as goal. With such criteria and aim, the Vietnamese revolutionary leaders
were determined to follow the line of thought of the Marxist-Leninist to build
a state known as the Socialist Republic of Vietnam. So, first of all, the
concept of the socialist state, in general, and the Socialist Republic of
Vietnam, in particular, is a system of thought.
In
my opinion, this system of thought is rendered to the objective world in 2
basic contents, namely: political system, system of state apparatus and the
operations of these 2 systems. Many instruments of Vietnamese Communist Party
Congress have ever acknowledged the shortcomings in the process of mobilizing
these systems and necessity for regulation so as to perfect and accord with the
objective needs of the Vietnamese people who wish a life of comfort, democracy
and happiness. In the movement of these systems, there must be factors/elements
which impede the fulfillment of the above-mentioned goals of the Socialist
Republic of Vietnam.
Are
whether the resistance and protest against those impeding factors/elements
against the Socialist Republic of Vietnam or not?
The
reason I have raised this argument and requested the Procurary to point out
what legal relations have been infringed is simply that the concept of state is
an extremely abstract one which I am sure that I and the Procurary have not yet
understood thoroughly. On the other hand, the Penal Code of Vietnam’s Article
88 is a deeply indistinct and enigmatic article of law that we don’t have any
guidelines of the Supreme Court or Congress on the legal concept of this crime
so we will easily fall into the states of subjectivity, attribution and
slander.
If
the Procurary want to impute Mr. Pham Ba Hai’s actions to then anti-Socialist
Republic of Vietnam, then what infringed legal relation has to be pointed out.
Pointing
out what legal relation known as the anti-state will clarify whether Mr. Pham
Ba Hai’ssense of subjective side is against the State or not, but I will
present in the next section.
Next,
I am going further into analyzing Mr. Pham Ba Hai’s specific actions and Bach
Dang Giang Foundation:
II.
Mr. Pham Ba Hai’s actions are not against the Socialist Republic of Vietnam but
the factors/elements that have hindered the social progress.
The First
Instance trial has accused Mr. Pham Ba Hai of the propaganda against the
Socialist Republic of Vietnam based on the following series of actions:
1. Having established
Bach Dang Giang Foundation with 4 tasks:
a. Speeding up the
propaganda activities; providing the people with the truth of the development
of the country. Encouraging, supporting, spreading every movement and thought
offree democracy.
b. Supporting the
establishment of independent trade union to defend workers’ interests, going to
replace the Socialist Republic of Vietnam and building up multi-party pluralism.
c. Providing
scholarships to juniors of those who had fled the country but were forced to
repatriate and called “the victims of discrimination, differentiation and
ill-treatment” by Bach Dang Giang Foundation in order to train and build up a
new young generation.
d. Humanitarian
activities to encourage physically and materially the disabled puppet soldiers
and all the strata and individuals who are victims of the communist tyranny.
2. Having written the
followings: “Letter dated March 17, 2005, to Venerable Thich Man Chau in the
United States” (The judgment of First Instance considered the letter referring
to the issue of “Pham Ba Hai had been expelled from Law school and detained in
Thu Duc’s Public Security Department for 06 months” as untrue); “Stigma of
Vietnam in the race against Taiwan and Korea”; “Opportunity to overcome was deprived:
1954 – 1975”; “National Unity: Golden chance for development”; “Advancing to
the socialism: 10 years for finding the clue of tie”; “What can save today”.
3. Participating in Block 8406
I
think that the First Instance Level has not proved that Mr. Pham Ba Hai’s
subjective sense was against the Socialist Republic of Vietnam. In my opinion,
about subjective side, Mr. Pham Ba Hai only had the sense of resistance and
protest against the factors which had blocked the development process of
Vietnam.
First
of all, I would ask the Procuraryif in the system of the law of Vietnam there
is any article that forbids the establishment of organization. If not, I
continue my analysis:
1. The establishment of
Bach Dang Giang Foundation with 4 tasks listed by the judgment of first
instance that I have re-presented above do not have any task which was against
the Socialist Republic of Vietnam.
_ It
does not make sense if “providing the people with the truth of the development
of the country; Encouraging, supporting, spreading every movement and thought
of free democracy” are against the Socialist Republic of Vietnam. Thought of
free democracy is one of the top assignments which the Socialist Republic of
Vietnam is heading. So why is the action of encouraging the thought of free
democracy considered as anti-Socialist Republic of Vietnam?
_
Supporting the establishment of independent trade union to defend workers’ interests,
going to replace the Socialist Republic of Vietnam and building up pluralistic,
multi-party system. First of all, in the original of the objective of Bach Dang
Giang Foundation posted publicly at the address www.bachdanggian.org
clearly wrting “going to replace the one-party dictatorship” with “free
democratic pluralism”, completely not “going to replace the Socialist Republic
of Vietnam and building up pluralistic, multi-party system” (Records 0060,
0061). It is obvious that the Procurary have replaced on its own initiative the
phrase “going to replace one-part dictatorship” with the other “replace the
Socialist Republic of Vietnam”. That is the deliberate fabrication to shift
blame onto Mr. Pham Ba Hai and Bach Dang Giang Foundation for the sense against
the Socialist Republic of Vietnam.
Back
to the issue of Supporting the establishment of independent trade union to
defend workers’ interests. I would remind that the Socialist Republic of
Vietnam in particular and the State of Socialist Republic in general rely on
the base of the working class’s interests. So, the establishment of independent
trade unions and defense of the workers’ interests are not against the
Socialist Republic of Vietnam but to support her as inferred by First Instance
Level.
The
call for multi-party pluralism, in my opinion, it is simply a solution for the
process of democratizing country. The leaders of our State think that it is
enough to be governed by only one communist party and this is also a solution.
Raising a solution for a democratic process is not with the aim of being
against the Socialist Republic of Vietnam. Needing to remind that when
abolishing the feudalism, hereditary succession, our leaders desired to build a
democratic society where power belonged to the people through electoral
mechanism so that the people executed their power. I don’t criticize whether
the issue of multi-party pluralism is right or not but I think that multi-party
pluralism is not an illogical solution.
Granting
scholarships and supporting disabled veterans are simply the humanitarian
activities of an organization and I felt no need for further comment because
the Procurary and Jury can realize it easily.
The
additional findings numbered 145/ANĐT dated September 12, 2007 of the Department
of Public Security’s Security Agencies saying that Mr. Pham Ba Hai’s granting
scholarships “with the aim of training young leading generations to replace the
leaders of the Vietnamese Communist Party towards the country” was a subjective
deduction. It represents the thinking of conservativeness, stagnation, clinging
to power and position and counter-science of the Department of Public
Security’s Security Agencies. Anyone, including the leaders, must also age and
die, “old bamboo shoots grow” is the law of social evolution. If the young
generation that Mr. Pham Ba Hai granted scholarships and trained is competent,
moral and worth governing the country, then it is a very good thing, joyfulness
and happy fate of the Vietnamese people. The goal to build the country of the
Vietnamese government is to move towards a fair, democratic and civilized
society so the reason why the ones with full competence, morals cannot replace
the leaders of the Vietnamese Communist Party to continue governing the
country.
Thus,
the establishment of Bach Dang Giang Foundation with the above-mentioned tasks,
in my opinion, is not to aim at opposing the Socialist Republic of Vietnam but to
head to the construction of a fair, democratic society.
2/ The First Instance
Level judged that Mr. Pham Ba Hai had written 6 articles and having relied on
Mr. Pham Minh Nghiep’s assessment conclusion to conclude that Mr. Pham Ba Hai
had had the subjective sense against the Socialist Republic of Vietnam is not
satisfactory because:
-
Letter written to the Venerable Thich Man Giac as an exchanging one between
individual and individual was seized at the private house (or printed from the
computer at Mr. Pham Ba Hai’s house, the investigation documents did not
specify, Records 0140). This was Mr. Pham Ba Hai’spersonal letter exchanging
with the VenearableThich Man Giac, so the writer could write what he liked,
even invent many untrue circumstances etc…it doesn’t make sense if a personal
letter had to be written correctly pursuant to the lines and policies of the
government. I really don’t understand why a personal letter was considered
against the state.
- In
the remaining 5 articles, there was only article “Stigma of Vietnam in the race
against Taiwan and Korea” taken into the case file and appraised and the
contents of these articles were not included, not knowing what had been written.In
the public questioning at the first instance court, there was no mention of
what the contents of these articles were, no elucidation of what had been
written wrongly, then what grounds for saying that the contents of them were
erroneous?
- In
the article “Stigma of Vietnam in the race against Taiwan and Korea”, Mr. Pham
Ba Hai claimed that Spratlys Islands, Paracels Islands and Nam Quan Pass were a
part of the territory of Vietnam. Mr. Pham Ba Hai felt great anguish when a
part of his country had fallen into the hands of other country like you were
hurt when having lost a part of your body. It should be recalled that in the
history of our combatting aggressors, China was one of the countries that had
invaded our country most. Maybe the Procurary is the one who knows this better.
Was feeling great anguish when a part of country had fallen into the hands of
another considered against the Socialist Republic of Vietnam?
-
The remaining 5 articles were not mentioned by the First Instance Level.
Therefore, pursuant to the regulation of Item 1, Article 184 of the Code of
Criminal Proceedings saying “the verdict is only based on the evidences
considered at the hearing”, the aforementioned 5 articles had not been
considered at the first instance trial, so they cannot be regarded as evidence
to accuse Mr. Pham Ba Hai.
On
the other hand, the First Instance Level’s relying on Mr. Nguyen Minh Nghiep’s
assessment conclusion numbered 123/KLGĐTP dated October 25, 2006 to accuse Mr.
Pham Ba Hai is not objective:
- With regard to the form:
This assessment conclusion numbered 123/KLGĐTP is not legal because Mr. Nguyen
Minh Nghiep signed it as assessor in charge of assessment without the decision
of appointing him to the position of justice assessor of Ho Chi Minh City’s
People’s Committee or the confirmation of the assessor’s signature of the
People’s Committee of the City, so Mr. Nghiep’s status of assessor cannot be
certified. Authenticating the signature of Mr. Nguyen Minh Son (as
receiver/deliver) of Inspection Office of Import-Export Cultural Products under
the Department of Culture and Information of Ho Chi Minh City was in his
capacity as Deputy Manager of Inspection Office of Import-Export Cultural
Products, not as assessor. So, the assessment conclusion numbered 123/KLGĐTP
has no validity as evidence for accusation (Item 3, Article 9 of the Judicial
Assessment Ordinance).
Needing
to add that, the Department of Culture and Information of Ho Chi Minh City is a
state agency, a component part in the apparatus of the state, then its
assessment conclusion on an issue that itself is a subject of being against is
clearly not objective. The Department of Public Security’s Security Agencies
ought not to have had reverse consultation from the department level downward
to the subordinate one as staff of the Department of Culture and Information of
Ho Chi Minh City but from the independent individuals, overseas organizations
and expertise (Item 2, Article 24 of the Judicial Assessment Ordinance).
- With regard to the content: The
assessment conclusion numbered 123/KLGĐTP concluded: “This is a bad document,
the articles contain thoughts of incitation, calling with political language
which has subversive nature, negative effects to the social stability of the
renovation, causing damage to the national security, violating the law of
Vietnam. The documents show a dangerous quality of an opposing tendency firmly
structured by an organization, a large-scale system having relationship with a
foreign reactionary influence practically threatening to the national security
and social safety”. Obviously, this is a judgment which has deductive nature
according to the subjective intention of Mr. Nguyen Minh Nghiep because he kept
repeating the words such as “misrepresenting”, “speaking ill”, “bad documents”
etc…but did not point out concretely which sentence “misrepresented”the truth,
whatwas “being badl”, what the truth of that issue was, what point was
detrimental to the stability of society, what was the result. Mr. Nghiep
authorized himself on behalf of the agency to conclude “large-scale system having
relationship with an overseas reactionary force” but did not indicate what that
overseas reactionary force was. Finally, he only referred generally to violating
the law of press and Decree numbered 55/NĐ-CP without pointing out the specific
violation of what item, article, and clause of those two documents.
Although
the first instance verdict had not cited clearly the article “Stigma of Vietnam
in the race against Taiwan and Korea”, it was specified in the additional
investigation conclusion so I further analyze:
Article 1: “Opportunity to overcome was
deprived: 1954 – 1975”
The
proceedings agency thinks that Mr. Pham Ba Hai “distorted the fruit of the
national liberation struggle” in the sentence:
“What
the Vietnamese Communists’ bellicosity and brutality had caused to the
Northerners for 30 years was clearly written in the history. Why the Vietnamese
Communists did not let the Southerners, with the same background, give their
mind to improving the economic development and competition with Taiwan and
Korea. In the first sentence, Mr. Pham Ba Haidid not judge or comment but only
stated that the history would acknowledge, so it cannot be infer as
“distortion”. In the next sentence, by using the interrogative “why not” Mr.
Pham Ba Haiput the supposition about a stage of society and not also affirmed
anything, so it could not all the more be attributed the truth distortion to
the author.
Article 2: “National Unity – Golden
Chance For Development”
Considered
as “distorting the economic development, criticizing the leadership of the
Party and State” pursuant to the paragraph: “In 1986 the Socialist regime
marked the poverty of the people with the hyperinflation reaching the world
record, 777,7%. Where were the achievements for building the socialism in the
North?”
Maybe
the proceedings agency forgot that the First National Congress of the
Vietnamese Communist Party’s XI had been considered as the first congress
opening the renovation stage for the economy of Vietnam. Why did it have to
renovate? Because the economy at that time was in extreme crisis, the state of
Vietnam had to choose between 2 ways: dying or renovating? And the 6th
congress chose renovation.
The
resolution of the 6th Congress judged that “the situation of the
socio-economy is facing the severe difficulties such as production increasing
slowly; low efficiency in production and investment; distribution and
circulation have much confusion; significant unbalances in the economy have
slowly been narrowed, some aspect is more severe; socialist production
relations are slowly strengthened; the living condition of the labor class
still has a lots of difficulties; negative phenomenon happens in many places,
some are serious”, “not yet determined to overcome hasty subjectivity, conservativeness
and stagnation in the arrangement of economic structure, socialist reform and
economic management and committing new and serious mistakesin distribution and
circulation”.
Therefore,
the resolution of the 6th Congress brought out the directions: “Urgently
correcting, implementing the economic policies, especially the ones in material
supply, commodity circulation, pricing, tax, credit, wages…in order to
encourage the establishments, workers, farmers and craftsmen eagerly to develop
production”, “reforming economic management mechanism in order to create
motivation to the economic units, labor masses for eagerly developing
production, increasing capacity, quality and economic efficiency”.
The
above-mentioned quotes from the 6th Congress instrument show that
Mr. Pham Ba Hai wrote correctly about the reality of the society of Vietnam in
the period of 1986 so the accusation of “distorting the economic development,
criticizing the leadership of the Party and State” is groundless.
Article 3: “Advancing to the socialism:
10 years for finding the clue of tie” is reckoned as “distorting
the line of the economic development of Vietnam”, having paragraph “The
standard of living of the civilians is improved much or little, domineered over
or liberated to what extent, the past 30 years and future, depending on the
hands of the Vietnamese Communists. Whether or not they have thought this
opportunity, though belated, is a great one for the nationality, not misusing
the civilians’ force, washing out the interminable insults”. In the first
sentence, from “the standard of living of the people” to “the hands of the
Vietnamese Communists”, it is a completely sound judgment of Mr. Pham Ba Hai
about the actual situation of Vietnam. The Vietnamese Communist Party is
leading Vietnam then there is no reason why the people depend on the foreign
capitalists but it is right for them to depend on the Vietnamese Communists. In
the next sentence, the word “They” is to point at the Communists and the writer
put a question that why not “misusing the civilians’ force”? Do not coerce the civilians
to do what they are unable to do, it was also the advice of Hung Dao Vuong Tran
Quoc Tuan in “Call of Soldiers”. If deducing that the request of “not misusing
the civilians’ force” is the distortion of the line so Hung Dao Vuong was also
the one who “had distorted the line of the economic development” of the King
Tran.
Article 4: “What can save today” is
imputed as “backbiting the leading line of the Vietnamese Communist Party”
through the sentence: “TV of the Communist has to project their films to
satisfy the people’s liking besides the music and fashion etc…The Party’s
culture, propaganda films have made the spiritual life of the people crippled,
unbalanced. The tragic consequence of that is that there have been tens of
thousands of Vietnamese girls who have been daughters-in-law abroad, enduring
countless humiliation in Taiwan and Korea”, “thoroughly economic resolution to
shorten the different distance, gradually deleting the national humiliation;
the thoroughly political resolution to maintain efficiency and bring into play
all the national potential. The program of action of the patriotic people today
is to follow the call from the democrats, demanding multi-party pluralism and
free elections”.
In
this quote, the additional investigation conclusion truncated the first
sentence “Stigma of the Socialist Republic of Vietnam is inferior and backward,
the inferiority has weighed on the conscience of the patriotic intellectuals
and the backwardness has closely surrounded the civilians and the poor” but
only took the following clause that has made the sentence obscure and
misleading the writer’s idea.
“The
tens of thousands of the Vietnamese girls who have been daughters-in-law
abroad” have had to live as sexual slaves; being beaten and even brutally
killed…is an actual situation that no one can deny. Voicing a reality of the
society of Vietnam which everyone knows is not “the defamation of the Party”.
The fact that is unable to be denied is that our economy cannot be developed as
the same as Taiwan and Korea. We are more backward than them and our people are
poorer than theirs. Saying that we feel humiliated to the countries with the
same conditions and circumstances but they have more developed and civilized
than us is totally right. There is no reason why we are proud that our country
is more inferior and backward than the other countries.
The
Penal Code does not have any offense prescribing the action of “backbiting the
leading line of the Communist Party” so “backbiting the leading line of the
Vietnamese Communist Party”, if any, is not against the Socialist State.
Considering
thoroughly all the articles of Mr. Pham Ba Hai, the facts and figures about the
economic situation of Vietnam adduced in them are correct. When evaluating a
work, we must evaluate it on the overall and subjective basis and not entitled
to cut into pieces of words out of the context of the article then infer
wrongly pursuant to the reader’s idea as the assessment conclusion and
additional investigation conclusion did.
Therefore,
it can be affirmed that the above articles are based on accurate events,
expressing the protesting ideas of Mr. Pham Ba Hai towards the factors/elements
hindering the social progress and not aiming at opposing the Socialist Republic
of Vietnam.
3. Action of participating in the Block
8406:
The
Decision numbered 127/2007/QĐ-THS dated July 19, 2007, of Ho Chi Minh City’s
People’s Court requested the supply of documents, evidences to prove “how the
activities of Block 8406 has opposed the government are” and the additional
investigation conclusion of the Department of Public Security’s Security
Agencies did not supply any further document or evidence.
In
today court, if the Procurary can point out document or evidence showing the
conclusion for the Block 8406’s activities are to aim at opposing the Socialist
Republic of Vietnam and whether or not the document is publicly proclaimed, if
any, I would agree that Mr. Pham Ba Hai purposed to oppose the Socialist
Republic of Vietnam. If the Procurary do not provide further new evidences,
then this action does not obviously commit the offence of propagandizing the
Socialist Republic of Vietnam.
Dear Jury,
From
the arguments presented above, I respectfully request the Jury to declare that
Mr. Pham Ba Hai is not guilty of propaganda against the Socialist Republic of
Vietnam. Together with the Procurary to clarify Mr. Pham Ba Hai’s actions, I
summarize 4 key issues to argue:
- What
is to oppose the Socialist Republic of Vietnam?
- Whether
or not the establishment of Bach Dang Giang Foundation and Mr. Pham Ba Hai’s
articles have targeted towards opposing the Socialist Republic of Vietnam.
- Whether
or not the action of participating in the Block 8406 has intended for opposing
the Socialist Republic of Vietnam.
- Whether
or not the assessment conclusion is objective.
Thank
you for listening!
Lawyer
Le Tran Luat
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