Death by a flawed system

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vidence was lacking in his case, and until the end Lê Văn Mạnh professed to be innocent of the rape and murder he had been accused of committing in 2005 in a village in northern Vietnam. He was just in his 20s at the time.

On Sept. 22, 2023, at age 41, he was executed by lethal injection. Vietnam’s local media outlets were silent about his death. 

Lê Văn Mạnh’s family, with the support of rights groups across the world, had been fighting for justice for him for two decades. But on Sept. 18, 2023, his loved ones were notified that they could apply in writing to receive his ashes or corpse; no details on whether he was still alive or already dead were given.

A day after his execution, his family finally confirmed he had passed when they received his death certificate.   

Quỳnh-Vi Trần, executive director of the Taiwan-based non-profit Legal Initiatives for Vietnam, along with other Vietnamese rights defenders and ordinary citizens, has advocated for the yearly commemoration of Lê Văn Mạnh’s death “because he was wrongfully executed.”

“The state failed to prove his crime beyond a reasonable doubt, but it wrongfully executed him,” Trần says. “If we want to build a society with the rule of law, it is our duty to not forget wrongful executions like Lê Văn Mạnh’s because it is the only way to hold the state accountable.” 

Vietnam is among the 87 countries worldwide  – including eight members of the Association of Southeast Asian Nations (ASEAN) – that still have the death penalty. It is also believed to be among the top 10 countries carrying out the most executions this year, although this cannot be confirmed largely because all information involving the death penalty has been considered “state secret” since 2018. 

That is also why Lê Văn Mạnh’s family had not known his execution date until after the deed had been done. 

According to the U.S.-based nonprofit The Advocates for Human Rights, however, there were more than 1,200 individuals in Vietnam’s death row as of the end of 2022. Last April, real estate tycoon Trương Mỹ Lan was sentenced to death after being found guilty in what has been billed as Vietnam’s biggest financial fraud case; her lawyers have filed an appeal. This September, an ex-government accountant also received the death sentence for embezzling more than US$6 million. 

A peculiar criminal justice system?

Under Vietnam’s 2015 Penal Code, death is the maximum punishment for 18 offenses, including drug and economic crimes. Rights advocates have argued that this goes against the International Covenant on Civil or Political Rights (ICCPR), which Vietnam ratified in September 1982. 

The ICCPR does allow capital punishment, but only for “the most serious crimes.” To rights advocates and observers, crimes deemed “most serious” are those that result in the loss of life. They add that while other countries such as Singapore and Indonesia also impose capital punishment for crimes that do not meet this criterion, peculiarities in Vietnam’s criminal justice system make it vulnerable to generating wrongful executions. 

Moreover, they say, Vietnamese authorities have used the system as a weapon against dissenters and perceived enemies of the state.

No one among Vietnam’s 160 known political prisoners has been handed a death sentence. But Tùng Nguyễn, executive director of the U.S-based Vietnam Human Rights Network, nevertheless argues: “The terrible death penalty situation in Vietnam has its roots in the cultural-political foundation. For a totalitarian dictatorship built and consolidated by terror and violence, the death penalty is the most effective tool to establish political security, as well as social security.”

In the chapter he wrote for the 2022 book Unpacking the Death Penalty in ASEAN, academic and former NGO worker Dr. Mark Capaldi meanwhile noted that in authoritarian states in the region, “an operational death penalty may also function as an insurance policy against political instability and future threats to the regime.”

Yet while capital punishment seems to be more a threat than a reality for government critics in Vietnam for now, rights advocates say that many other individuals who have indeed been sentenced to death may not even be guilty of the crimes they are accused of committing.

In a 2022 paper, a group of Vietnamese academics and legal experts said that factors leading to wrongful convictions in Vietnam, as in other Asian countries, include “false confession by torture, misconduct of judicial practitioners, forensic errors…and political factors.” 

They also noted a tendency among investigators to presume a suspect is guilty. This premise practically guarantees that the suspect will not be proven innocent as it leads the police to “wrongfully (conduct) their investigations to collect evidence and prove the ‘truth’ of their cases.” 

In addition, the authors of the paper, which was first published by the Asian Journal of Criminology, cited three characteristics of the Vietnamese criminal justice system that make it prone to wrongful convictions.

 One is its use of the “three-internal-affairs model,” which is similar to that of China. The scholars and experts said that while the model “provides the most powerful tools to these three already powerful authorities (investigators, prosecutors, and judges) that allow the criminal justice system functioning effectively, there is a potential lack of transparency and accountability when power is unchecked.” 

The second characteristic is the quota system present in each judicial agency and an emphasis on a “preferred” conviction rate of as much as 95%. According to the paper’s authors, these place “stress and pressure on the investigating, prosecuting, and hearing phases” and “may lead to official misconduct in (Vietnam’s) criminal justice system.”

The third characteristic, said the academics and experts, is the limited role of defense lawyers in the system, and who also endure extreme challenges that often compel them “to withdraw or work toward a compromise with the authorities rather than (pursue) a complete exoneration for their clients.” 

The state in control

All these seem to have been present in the case of Lê Văn Mạnh, where the sole evidence against the accused was a “confession letter” he allegedly wrote to his father. 

Lê would later say that he had been forced to write the letter after being tortured and beaten up by the police and his detention cellmates. He retracted the “confession,” and instead repeatedly denied all the allegations against him in court.

Interestingly, all of the accused in the four specific cases (three involving murder, the fourth drugs) scrutinized by the authors of the paper as part of their study had received prison terms instead of death sentences. 

All four were also eventually exonerated, which in turn may have been due to public pressure for authorities to review their cases. As the paper’s authors pointed out, “Most wrongful convictions have been exonerated only after many complaints and appeals from the innocent’s (sic) relatives and defense lawyers via social-media campaigns.” 

But for such campaigns to thrive and put pressure on authorities, information – which is state-controlled in Vietnam – is vital. Activists even tell Asia Democracy Chronicles (ADC) of numerous attempts by local authorities to stop on-site and online discussions of issues regarding the death penalty. 

There is the possibility of clemency for death-row prisoners, though. In December last year, President Vo Van Thuong commuted the death sentences of 18 prisoners to life terms; he similarly commuted the sentences of five more death-row inmates last February. 

Article 88 of Vietnam’s most recent constitution, adopted in 2013, authorizes the State President the power to grant clemency should the Supreme People’s Court Chief Justice recommend such action on a prisoner’s application. But legal experts and activists alike maintain that clemency in Vietnam is largely politically driven. 

Dr. Daniel Pascoe of the City University of Hong Kong’s School of Law says that “where explicit or implicit justifications can be surmised, all Vietnamese clemency grants during the years 1986 to 2015 appear to have been issued either on the basis of political or utilitarian considerations, or else as a result of the prisoner’s connections to the Vietnamese Communist Party prior to arrest.”

“Clemency often seems to be granted as a ‘reward’ for previous government service, or Party membership, or other contributions to public life in Vietnam,” Pascoe says. “This can be irrespective of how severe the crime is, what the defendant’s level of remorse is, etcetera.”

Rights advocates meanwhile consider the state’s periodic grants of clemency to those in death row as nothing but a government ploy to spruce up its image.

A February 2024 Radio Free Asia (RFA) report on the December 2023 and February 2024 amnesty grants quoted lawyer Nguyễn Văn Đài as saying, “Every year, Vietnam hands out hundreds of death sentences to drug traffickers and murderers. If all the death inmates were executed, the international community would pillory Vietnam. So they find inmates who were sentenced to death for less heinous criminal acts and grant them amnesty.” 

Nguyễn also pointed out that while “clemency should be granted to all prisoners, both political and criminal…it is never granted in cases of national security.” 

Malaysian human rights lawyer Mahajoth Singh, for his part, asserts that the death penalty is inhumane, arguing that it breaches fundamental human rights. He says as well that it has an “irreversible effect” not only on the prisoner who is executed, but also on the family. 

 Singh, who has handled cases in which death was the maximum penalty, remarks, “The mental trauma and psychological impact on the family are often forgotten.”

“There needs to be an ASEAN Court of Human Rights,” he says, “like the European Court of Human Rights, a supranational judicial system that led to uniformity of thoughts (on the death penalty).”

But that may be difficult to pull off; among ASEAN’s 10 member-states, only the courts of Cambodia and the Philippines no longer hand down death sentences.

Capaldi wrote in Unpacking the Death Penalty in ASEAN: “Without a doubt, it is not easy to push for policy reform in ASEAN on the death penalty as political leaders prioritize being seen as tough on crime.” ◉

Nguyện Công Bằng is an independent journalist who writes about Southeast Asia.