English - CEDAW Southeast Asia

CEDAW and the Law:
Fourth, Article 9 of the Civil Code provides that all the civil rights of individuals and legal
persons must be respected. In cases where it has been infringed, the persons have the right
to protect such rights in accordance with the Civil Code or request competent agencies or
organizations to: (a) recognize civil rights; (b) order the termination of the act of violation; (c)
order a public apology or rectification; (d) order performance of civil obligations; or (e) order
compensation for damage.
Fifth, and in addition to these provisions, the Penal Code obligates denunciations.
Article 314 of the Penal Code provides: “Those who have full knowledge of one of the crimes
defined in Art. 313 of this Code, which is being prepared, is being or has been committed, but
fail to denounce it, shall be subject to warning, non-custodial reform for up to three years or a
prison term of between three months and three years…. Persons who have failed to denounce
offenses but acted to dissuade the offenders from committing the offense or to limit the harms
done thereby, may be exempt from penal liability or penalties.” Article 313 of the Penal Code
enumerates some cases of GBV, which is considered a form of discrimination under
CEDAW. 156
In practice, however, the extent to which these provisions are used to file gender-based
discrimination is limited. Over the past three years, there were very few administrative cases
filed by women for the reason of gender-based discrimination. 157
In a survey conducted in 2004, awareness in Viet Nam of the key legal and institutional
frameworks in place for the protection of rights, such as the courts, legal aid centres and
grass-roots mediation groups, was found to be low. 158 However, there was relatively high level
of awareness about people’s committees and the police. 159 Access to judicial institutions, such
as the courts and procuracy, is relatively low, while access to people’s committees and the
police is higher, which places a significant responsibility on these institutions. 160 People’s
access to legal information is limited. 161 Legal awareness, access to legal information and judicial
institutions is lower with low-income groups and those living in rural and remote and mountainous
regions. 162 These findings show that, although legal documents are in place on the right
84
156
Article 313 states: “Those who without prior promise conceal one of the offense defined in the following articles shall be
sentenced to non-custodial reform for up to three years or between six months and five years imprisonment.” The articles
of the Penal Code that are referred to by Article 313 include the following: Article 93 (Murder); Clauses 2-4 of Article
111 (Rape); Article 112 (Rape against children); Article 114 (Forcible intercourse with children); Clauses 2 and 3 of
Article 116 (Obscenity against children); Article 119 (Trafficking in women); Article 120 (Trading in, fraudulently exchanging
or appropriating children); and Article 256 (Having paid sexual intercourse with children).
157
Combined Fifth and Sixth Periodic Report, p. 9
158
United Nations Development Programme, ‘Survey from a People’s Perspective: Access to Justice in Viet Nam’, United
Nations Development Programme, Ha Noi, May 2004 (UNDP Survey), p. i
159
Ibid.
160
Ibid., pp. 12-13. There are many reasons stated in the UNDP Survey for why the Vietnamese judicial system, particularly
the courts, is not widely accessed. Courts, lawyers, legal aid centres and grass-roots mediation groups are seen
as last resort. There is low awareness of the courts. It could be that people turn to police and people’s committees
because they deal more directly with matters related to day-to-day concerns of the people. The cadres and officials of
these institutions live close to the people in the area under their management and they are seen to understand better
the issues the people experience. On whether to initiate proceedings, time and cost where rated as important factors
relating to initiating proceedings before the judicial institutions or government authorities. As many as 47 percent of
interviewees stated that it is costly to pursue litigation in court. Cost is indeed perceived as a restricting factor.
161
Ibid., p. i
162
Ibid., p. 19
Review of key legal documents and compliance with CEDAW