VIETNAM:
Implementation will test new religious ordinance
by Magda Hornemann (September 21, 2004)
Believers have responded warily to the new religious ordinance which codifies
the state's policies on religious affairs, though implementation will test if it
makes religious practice easier or more difficult. The ordinance, adopted by the
National Assembly's standing committee in June, comes into force on 15 November.
Officials have already met religious representatives to discuss the content. The
ordinance lays greater stress on believers "abiding by law" rather than needing
specific permission for many activities, but still reflects official suspicion
of religious groups. Registered groups will need annual permission to hold
regular meetings in their own buildings, while conferences in other premises
will require specific permission. Unclear is whether home meetings are allowed.
Religious activities and even beliefs can be banned. Prisoners are banned from
religious activity, while former prisoners need permission. Local officials must
approve assignment of clergy, while religious groups' contacts with abroad
remain under official control. The ordinance does not mention the return of
confiscated places of worship. Three Catholic priests described the ordinance as
"a tool of the state to oppress people of faith".
Officials and religious believers in Vietnam are still digesting the
recently-adopted religious ordinance which officially codifies the state's
policies and guidelines on religious affairs, trying to determine whether it
makes religious activity easier or more difficult – and how it will be
implemented on the ground. Even before its entry into force on 15 November,
copies of the ordinance have been circulated throughout Vietnam and the
government has already held meetings with representatives of religious groups to
discuss the contents. Religious leaders - including three well-known Catholic
priests, Fr Chan Tin, Fr Nguyen Huu Giai and Fr Phan Van Loi, and the
unregistered Vietnam Evangelical Fellowship, which brings together several
hundred house churches - have issued critiques of the document.
The Standing Committee of Vietnam's National Assembly promulgated the
long-anticipated ordinance (No. 21/2004/PL-UBTVQH11) on 18 June. The 41-article
document replaced the 1999 Prime Ministerial Decree as Vietnam's primary policy
document on religious affairs. By all accounts, the document has been in the
works for several years: the National Assembly was originally scheduled to
ratify the ordinance by the end of 2003.
Officials have presented the ordinance as a reflection of the government's
effort to protect religious freedom. However, many critics have complained that
the document is at best "old wine in a new wineskin". The three Catholic priests
described it as "a tool of the state to oppress people of faith".
An examination of the document proves that when it comes to the state's distrust
of religions and religious groups "old habits die hard". The new ordinance
appears to mirror the concerns of most Communist governments. Indeed, many key
provisions bear a striking resemblance to regulations on religious affairs in
other communist states, such as China.
While stating in the first article that the "state guarantees freedom of
religious belief and of religion for its citizens", the ordinance later
admonishes those who dare to use religion to "undermine…national unity;
disseminate information against the state's prevailing laws and policies; [and]
spread superstitious practices..." The same article, Article 8, also bans any
attempt to use religion "to sow division among the people, ethnic groups, and
religions; to cause public disorder; to do harm to other people's lives, health,
dignity, honour, and property; to hinder people from exercising their rights and
public obligations." These stipulations expand on similar provisions in the 1999
Decree. This persistent suspicion of religions and their adherents is directly
related to the state's unwillingness to surrender its control of religious
organisations and their activities.
Regarding religious organisations, the ordinance added to the provisions of the
1999 Decree by specifying the criteria for government approval of such groups.
Article 16 of the ordinance sets out the requirements a religious group must
meet to obtain legal recognition. First, it must demonstrate that "it is an
organisation of people with the same belief, who follow religious tenets and
rites that do not go against the nation's fine traditions and customs, and the
common benefit of the people". Second, the organisations must have a charter or
"regulations outlining principles, objectives and activities favouring
attachment to the nation and not contrary to the provisions of the law." Third,
as mentioned earlier, it must register its activities and "maintain long-term,
stable operations". Fourth, the organisation must have an office and
administrative and legal representatives. Finally, it must possess "a name that
is not identical to the name of another religious organisation already
recognised by the competent state management agency."
Even for officially-sanctioned organisations, government recognition does not
automatically confer the right to conduct religious activities. Article 18,
mirroring Article 10 of the 1999 Decree, requires religious organisations to
seek approval from relevant government agencies before holding any "conferences"
or "congresses". Article 11 states that religious activities that take place
outside officially-sanctioned religious venues need the consent of the
appropriate level of government. Article 12 stipulates that even religious
activities in established religious venues must be "registered" on an annual
basis. Provisions of Articles 11 and 12 echo the contents of Article 8 of the
1999 Decree.
One such activity is the provision of religious education. The 2004 Ordinance
allows religious groups to provide religious education (religious education to
children under the age of 18 requires only parental consent, according to the
ordinance) by establishing schools and classes. But, as under the 1999 Decree,
government approval, especially from the prime minister and the relevant
provincial governor, is required before religious groups can open schools and
classes.
As if all these control mechanisms were insufficient, Article 15 of the
ordinance provides the Communist state with the right to suspend religious
activities and "religious belief" if these activities and beliefs result in
violations of ill-defined offences, such as the breach of "national security or
seriously and negatively affect public order or the environment"; or if they
"negatively affect the unity of the people or the nation's fine cultural
traditions"; "cause harm to other people's lives, health, dignity, honour, and
property"; and "cause other serious illegal activities".
Despite the provision protecting the individual right to religious freedom,
Article 13 of the ordinance maintains a similar provision from the 1999 Decree
that prohibits persons serving prison terms or administrative probation from
conducting religious activities. Those who have completed their sentences
require the "agreement" of the relevant "state management agency" to conduct
religious activities.
In addition, the ordinance keeps the provisions in the 1999 Decree that require
state approval of clerical appointments and assignments. For example, Article 23
of the ordinance is essentially an expanded version of Article 21 of the 1999
Decree, requiring the approval of local officials for clerical assignments. A
subtle difference, however, does exist on the issue of appointment between the
two documents. While the 1999 Decree stated that the government must approve
both clerical appointment and assignment, the 2004 Ordinance requires only that
appointments be in keeping with the "charters and regulations of the religious
organisations". Nonetheless, candidates must still meet three vaguely-defined
criteria: be a Vietnamese citizen of good moral conduct; possess the spirit of
national unity and national harmony; and scrupulously observe the law.
In this spirit of control, the 2004 Ordinance continues to provide the communist
state the power to manage Vietnamese religious groups' interactions with their
foreign counterparts. Articles 35 and 36 stipulate that state approval is
required for foreign individuals and organisations to conduct religious
activities in Vietnam. Similar approval is also required for Vietnamese
individuals and organisations to participate in religious activities or receive
religious education outside the country.
Moreover, as was the case under the 1999 Decree, the 2004 Ordinance requires
government approval of clerical appointments made by foreign individuals or
groups, with one interesting difference. The 1999 Decree stipulated that such
approvals were given by the prime minister, whereas under the 2004 Ordinance
approval can be obtained from the central government's "religious management
agency". This is unlikely to refer to the Committee on Religious Affairs since,
by all accounts, this body has no enforcement power and is essentially an
advisory agency to the prime minister. Therefore, this "religious management
agency" is almost certainly another government or Communist Party agency.
On this note, it may be significant that the 2004 Ordinance makes particular
reference to the Vietnam Fatherland Front, the Communist Party organisation that
oversees non-Communist organisations - including religious organisations - and
their activities. Article 7 of the ordinance states that the Front and "its
member organisations" are responsible for the mobilisation of religious
organisations and adherents to achieve political objectives; report "the
people's comments, expectations, and petitions on religious belief and
religion-related issues to the competent state agencies"; and be involved in
developing and monitoring state policies on religious affairs.
Clause 2 of the article highlights the central role of the Front by stipulating
that other government agencies "are to take the initiative in cooperating with"
the Front in implementing government policies and laws on religious affairs. By
emphasising the Front's role in executing the government's religious policies,
the state is finally acknowledging publicly the Front's central role in managing
religious affairs, a fact already known to those familiar with how the
Vietnamese bureaucracy works.
Another notable difference between the ordinance and the 1999 Decree on the
issue of foreign interactions is the absence in the ordinance of a
strangely-worded clause in Article 25 of the 1999 Decree, which stated that
"foreign organisations and individuals, including religious organisations and
individuals, that enter Vietnam to conduct activities outside the religious
domain are not allowed to organise and operate or take part in organising and
operating religious activities and to propagate religion".
In the past, many have interpreted this clause to mean that foreign individuals
and groups cannot conduct religious activities in Vietnam. Yet, a close
examination of this clause suggests that it applies only to those intending to
conduct non-religious activities. Such groups may include Montagnard Protestants
now living abroad, some of whom have been charged by the state for allegedly
fomenting unrest in the Central Highlands. If so, it would be interesting to see
whether foreign religious groups and individuals can indeed organise and
establish religious activities in the country.
One bone of contention between Vietnam's religious groups and the government is
the religious organisations' desire to recover properties confiscated by the
Communist Party after 1975. Article 11 of the 1999 Decree stated directly that
confiscated properties "come under the ownership of the state", thereby removing
any hope that religious groups could one day recover such properties.
This provision is noticeably absent in the 2004 Ordinance. While the new
ordinance refers to how existing religious properties should be used (Article
27) and how future disputes over religious properties that arise "due to the
requirements of economic development projects" should be resolved (Article 31),
there is no indication that the government is interested in discussing the issue
of properties confiscated in the past. The absence of a provision dealing with
this suggests that the state considers it a moot point.
Yet, even as the government appears unwilling to discuss this sensitive issue,
the ordinance seems to have removed the onerous requirements contained in the
1999 Decree that all major and minor renovations of religious properties must be
approved by the relevant local government agencies. Instead, the ordinance
provides that all renovations must simply adhere to relevant laws on
construction and, where appropriate, laws on the preservation of cultural and
historical relics. Only a "change in the intended uses" of religious properties
requires explicit government approval.
A second long-standing issue is how far religious individuals and organisations
can conduct humanitarian activities. Many religious communities, such as Hoa Hao
Buddhism, regard charitable activities - such as flood relief - as an integral
part of their religious belief. In the past, the government has generally tried
to keep some control over these activities for fear that religious groups could
use the social services they provide to establish a base from which to challenge
the regime. Article 17 of 1999 Decree explicitly stated that the "charity
establishments sponsored by religious dignitaries, clergy, and organisations
shall operate under the guidance of competent state agencies".
By contrast, the 2004 Ordinance suggests that the government is becoming - at
least in words if not in deeds – more prepared to allow religious organisations
and individuals to provide humanitarian services without having to obtain
specific government approval. Article 33 declares that the "state encourages and
creates favourable conditions for religious organisations to participate" in
activities that include the care of underprivileged children, sick and disabled
people, and the provision of pre-elementary education. The same article
stipulates that "religious dignitaries and those of religious vocation" are
"encouraged…to organise educational, health, humanitarian, and charitable
activities…" The article does not specify whether the religious groups and
individuals require explicit prior government approval, merely stating that such
activities should be conducted "according to law".
Another apparently positive provision in the 2004 Ordinance is the stipulation
in Article 38 that should any provisions of the ordinance conflict with
stipulations in international treaties Vietnam has signed, "the regulations
prescribed by the international treaties shall prevail". Moreover, religious
organisations and their subsidiaries that gained state recognition and
registration before the ordinance came into force will not have to re-apply for
recognition or undergo re-registration.
In addition to these apparently positive provisions, the 2004 Ordinance provides
more detailed definitions of key concepts such as "religious activities" and
"places of worship". Article 3 defines religious activities as "ancestor
worship; commemorating and honouring those who have rendered great services to
the country and the community; the worship of divinities and traditional symbols
as well as other folk beliefs and activities that represent fine, valuable
historical, cultural, moral and social values." They also include the "preaching
and practising of religious tenets, canons and rites, and the management of
religious organisations".
The same article states that places of worship include "communal houses,
temples, shrines, small pagodas, and family worship halls". However, not clear
is whether any of these definitions apply to religious services held in
individual believers' homes, such as those commonly held by Protestant
Christians.
The article also introduces a term that was not in the 1999 Decree – "religious
congregation", which is defined as "the assembly of believers set up by a
religious organisation for the sake of carrying out religious activities". This
concept is particularly interesting as it may provide legal support for
religious groups such as the state-recognised Evangelical Church of Vietnam to
establish affiliated churches in areas such as the Central Highlands. This is
especially significant as local officials in the Central Highlands have recently
refused to recognise Montagnard congregations that claim to be affiliated with
the Evangelical Church of Vietnam.
Several points emerge from this systematic analysis of the ordinance. First, it
appears that in crafting this legal document, the communist state has tried to
lessen the pervasive perception of a government intent on direct controlling
religious affairs. Hence, in comparison with the 1999 Decree, the ordinance
makes fewer references to the need for direct state approval. Instead, more
references are made to the need for activities to abide by law, making it appear
as if the law is the supreme institution governing religious affairs in the
country.
Second, more detailed definitions for key concepts that have often been the
sources of disputes between government officials and religious groups may have
been provided precisely to prevent future disputes emerging during
implementation. On the one hand, these definitions seem quite encompassing. On
the other, the level of detail is a concern as it may imply that items not
included in the definitions are automatically outlawed. This has particular
relevance to the application of the definitions of "religious activities" and
"places of worship".
Third, which is related to the first point, the 2004 Ordinance appears to
reflect a sophistication not seen before in the government. By stating that the
provisions of relevant international treaties to which Vietnam is a signatory
should take precedence over Vietnamese laws and regulations, the government is
clearly intent on countering its critics while attempting to broaden its network
of foreign "friends" and supporters.
While scepticism is justified over how faithful the Vietnamese government will
be in implementing these positive provisions, it is likely that they reflect
genuine recognition among some Vietnamese political leaders that the state needs
to allow greater religious freedom if for no other reason than to enhance the
government's image. In this regard, some interesting "positive" developments
have emerged. The Catholic news agency Zenit reported in July that, for the
2004-5 academic year, the government has permitted a higher-than-usual number of
students to enter St Joseph's Major Seminary in the capital Hanoi.
Still, the major test of how far the ordinance reflects a change in the
government's religious policy lies in the implementation process, which appears
to be already underway. For example, the government is rumoured to be using the
implementation process to overhaul the Cao Dai leadership in Tay Ninh,
essentially aiming to win over former Cao Dai leaders who have refused to
support the government. If so, no doubt a similar process is underway in other
religious communities, particularly those that are internally divided over how
they should relate to the government.
However, the government would face a monumental task indeed to reach out to
older generations of religious leaders who have suffered under Communist rule
and remain suspicious of government overtures. For such efforts to succeed, the
government will have to enact genuine and substantive policy changes, which are
not yet reflected in the new ordinance.
Another test is what government agencies and officials do in practice. On this
point, the prospect is even less hopeful. Prominent religious dissidents - such
as the Supreme Patriarch and the second-ranking leader of the Unified Buddhist
Church of Vietnam, Catholic priest Fr Thaddeus Nguyen Van Ly, and the Reverend
Nguyen Hong Quang of the unregistered house church - continue to be imprisoned,
detained or held under house arrest or police surveillance.
In addition, ethnic minorities like the Montagnards and the Hmongs continue to
suffer under the government's repressive policy. Pressure on ethnic minorities
to renounce their faith continues unabated. The government has refused to reopen
hundreds of churches in the Central Highlands that were forcibly closed during
the government's repeated crackdowns against the Montagnards during the last few
years.
Finally, the government has remained unrepentant in its rhetoric. In a
commentary broadcast on 10 August, the Voice of Vietnam claimed that the "state
of Vietnam has always guaranteed the freedom of belief and religion". Yet it
went on to describe the religious beliefs of groups such as the Montagnards as
"heresies" that "lead people into darkness, incite people to act against the
law, and direct followers into wrongful paths". The radio commentary
distinguished these religious groups from "religions with legitimacy and open
and transparent activity".
The Voice of Vietnam commentary illustrates that no matter how far the letter of
the law is improved, if the mindset of the law enforcer remains unchanged the
rights of the people will remain under constant threat.