CHAPTER IX:THE RIGHT TO FREEDOM OF THOUGHT AND EXPRESSION

A. Introduction

1. The right to freedom of expression is fundamental to ensuring the rule of law and the functioning of democratic institutions. In this regard, Article IV of the American Declaration of the Rights and Duties of Man sets out that “Every person has the right to freedom of investigation, of opinion, and of the expression and dissemination of ideas, by any medium whatsoever.”[1] Article 13 of the American Convention stipulates that “Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.”[2]

2. The state of freedom of expression in the Americas is a priority concern for the Inter-American Commission on Human Rights. On the basis of this concern, and pursuant to the request of a broad spectrum of groups within civil society and international organizations, and with the full support of the Heads of State and Government of the Americas, the Inter-American Commission on Human Rights of the OAS decided during its 98th regular session to establish the Office of the Special Rapporteur for Freedom of Expression. The Office is a functionally independent body operating within the legal framework of the Commission.

3. Given the basic role freedom of expression plays in the consolidation and development of democracy and the protection of all other human rights, one of the Office’s goals is to raise awareness throughout the Americas of the importance of respecting this right. Another objective is to assist member states in adopting positive measures in this field by making specific recommendations on matters related to freedom of expression. With these goals in mind, the Office of the Special Rapporteur visits countries when invited to do so in order to study specific situations.

4. Upon the invitation of President Alfonso Portillo Cabrera, the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights visited Guatemala for four days in April of 2000. The trip provided him with the opportunity to meet with a wide range of sectors of civil society and gain insight into various aspects of the current state of freedom of expression in Guatemala. A number of these aspects will be covered in the following sections of the present report.

5. The Special Rapporteur is deeply troubled by recent reports of a climate of uncertainty and tension between State authorities and some members of the media. The same can be said of the increasing number of cases of intimidation and threats against journalists in recent months. These matters will be more thoroughly examined in a special report on freedom of expression in Guatemala being prepared on the basis of all the information gathered during and after the visit made in April of 2000. The Office of the Special Rapporteur is currently finalizing that report, which will also delve into the discrepancy between practices that still allow for prosecution of media professionals under contempt laws (leyes de desacato) and the prohibition of such practices under Article 35 of the Political Constitution of Guatemala. Moreover, the report will take a close look at the question of monopolies and measures to ensure non-discrimination and plurality in the granting of frequencies, in accordance with the commitment made by the Government of Guatemala in the Agreement on Identity and Rights of Indigenous Peoples.

6. The following section examines the current legal basis of freedom of expression in Guatemala.

1. Legislation and Freedom of Expression

7. The Special Rapporteur for Freedom of Expression recognizes that freedom of expression covers a broad spectrum of activities that directly affect all individuals. Freedom of expression includes the right to seek, receive, and impart information and ideas of all kinds. Thus it has a dual character. On the one hand, it means that no one can be arbitrarily limited or impeded in expressing ideas. On the other, it implies a collective right to receive information without limitation and to have access to the ideas expressed by others.[3]

8. Any study of legislation directly impacting freedom of expression and information must be carried out with due consideration to the fundamental role this right plays in a democratic society. Moreover, all of the principles set out in Article 13 of the American Convention of Human Rights must be taken into account. Democracy’s dependency on effective and wide-ranging freedom of expression is not simply rooted in an exigency to respect the right per se, but also on the essential role that freedom of expression and information plays in assuring that all other basic rights are respected.

2. Domestic Law

9. Article 35 of the Political Constitution of Republic of Guatemala expressly recognizes the right to freedom of expression of ideas in the following terms:[4]

Ideas can be expressed freely through any medium without prior censorship or authorization. This constitutional right cannot be restricted by any law or governmental decree. Whoever infringes due respect for privacy or morality in the exercise of this freedom shall be held accountable according to the law. Whoever believes their rights have been infringed in that regard shall have the right to have their defense, clarification or rectification published….[5]

10. This provision of the Constitution prohibits prior censorship and limits responsibility for the contents of information transmitted to the subsequent imposition of liability. This is in accordance with Article 13(2) of the American Convention, which stipulates that the exercise of the right in question:

(…) shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:

a. respect for the rights or reputations of others; or

b. the protection of national security, public order, or public health or morals.[6]

11. In addition to the express prohibition of prior censorship, the Constitution of Guatemala contains provisions against indirect censorship. It prohibits acts that could impede the performance and operations of the media, such as expropriation, forced closing, embargo or seizure.

12. The Constitution of Guatemala contains additional provisions pertinent to freedom of expression, namely on access to information in the hands of the State (Article 30),[7] the action of habeas data (Article 31)[8] and the prohibition of monopolies (Article 130).[9]

13. In regard to exceptions to the right to access information in the hands of the State, Article 30 indicates that State bodies may deny access to military or diplomatic information only when making it available would endanger national security. Although Article 30 establishes the general principle that all acts of the administration are public in nature, Guatemalan legislation neither provides for concrete procedures that make it possible to effectively exercise the right of access to information, nor for an independent appeals body to resort to if access is denied.

14. President Alfonso Portillo Cabrera informed the Office of the Special Rapporteur that he intends to present draft legislation to Congress that would ensure that the right of access to information and the action of habeas data can be effectively exercised. According to information provided by the State, the Government, through the Secretariat for Strategic Analysis, has invited diverse groups of civil society to participate in the development of the draft law on access to information and habeas data.

15. Guaranteed access to information in the hands of the State contributes to greater transparency in Government operations and to a consequent reduction of corruption in State administration.

16. Citizen access to documents and files in the hands of the State is an effective control mechanism that fosters greater transparency in State administration and reduces corruption, thereby enhancing the democratic process.

17. The Office of the Special Rapporteur welcomes this initiative, as the right of access to information and action of habeas data are fundamental aspects for the strengthening of a democratic society and broad freedom of expression and information.

18. The Special Rapporteur for Freedom of Expression acknowledges that the advance of democracy in Guatemala has greatly contributed to assuring the exercise of the right of freedom of expression. More specifically, the Office of the Special Rapporteur recognizes that the peace accords have been fundamental in fostering the inclusion and participation of all sectors of Guatemalan society in public debate, thus strengthening the democratic system. The Office hopes that the Government’s current willingness to defend and broaden the right of all Guatemalans to freedom of expression will continue unabated throughout its term in office.

B. Restrictions on Freedom of Expression

1. The Situation Facing Journalists and other Social Commentators

19. A free press is one of the most important pillars of democracy. The Special Rapporteur underscores that respect for freedom of expression is essential to the development and safeguarding of democracy. The Rapporteur notes that it is those working in the field of social communication who principally carry out the task of informing the public and fostering debate that is so essential to building stronger institutions.

20. The Office of the Special Rapporteur welcomes the willingness of the current Government to maintain open lines of communication between high-level officials and journalists. This in itself is a guarantee of a broad-based freedom of expression grounded in transparency in government, a fundamental component of any democratic system.

21. Nevertheless, it must be mentioned that the Office has received information about cases and situations in which restrictions have been placed on freedom of expression. This is of great concern to the Office of the Rapporteur, which stresses that such cases must be investigated by the authorities with the utmost seriousness.

22. During the Rapporteur’s visit to Guatemala, he was informed that Martín Juárez, Luis Escobar, Enrique Castañeda and Silvia Gereda, all journalists working in the Investigative Journalism Unit of the daily El Periódico, had been followed and had received threatening phone calls. According to the information received, such actions were intended to dissuade them from publishing the results of an investigation into the structure of Guatemalan intelligence services.

23. Additionally, the Rapporteur expresses grave concern about information received subsequently concerning the April 27, 2000 murder of Roberto Martínez Castañeda, a journalist working for the daily Prensa Libre,[10] threats against the agency Centro de Reportes Informativos sobre Guatemala (CERIGUA),[11] and acts of intimidation against Sergio Méndez, a journalist for a radio news program called Guatemala Flash, and Estuardo Pinto, a journalist at the paper Nuestro Diario, both of whom were covering the trial for the murder of Bishop Juan Gerardi.[12]

24. The Special Rapporteur for Freedom of Expression issued a press release on April 28, 2000 concerning the murder of Roberto Martínez Castañeda. In it he expressed repudiation of the crime and called on Guatemalan authorities to clearly establish the facts of the case and punish those responsible. The Office of the Special Rapporteur has repeatedly stressed that the murder of journalists is the most brutal form of attack against freedom of expression and democratic institutions.

25. The American Convention on Human Rights sets out that states have the duty to prevent, investigate and punish any violation of the rights enshrined therein and to make reparation for the damage caused. In regard to journalists, the Inter-American Commission on Human Rights has maintained that failure to fully investigate the murder of a journalist and to punish both those who planned the crime and those who carried it out, is especially grave because of the impact it has on society as a whole. Impunity not only inspires fear in other journalists but among people in general, inhibiting them from denouncing illegal acts and abuses of all kinds.

26. Lastly, the Office wishes to mention the socio-economic situation of those who work in the media. During the visit to Guatemala, the Special Rapporteur was brought up to date on the situation in general. Such workers are not covered by life or other kinds of insurance, are not paid for overtime and have no set schedule. Further, wages are insufficient to cover basic necessities. It should be recalled that the right to obtain life insurance is expressly referred to in the Constitution of Guatemala.[13]

27. The Rapporteur wishes to again emphasize that direct attacks against the media are not the only way that the right to freedom of expression is violated. Indirect means, such as through the working conditions of those that have taken on the task of keeping people informed, can also produce violations. It is in this sense that the situation described is a violation of Article 13 of the American Convention.

2. The Situation of the Media

28. In meetings and conversations held during the visit to Guatemala, one of the main concerns voiced was the existence of a de facto monopoly over broadcast television channels that may be seriously affecting freedom of expression and the right of Guatemalans to be informed.[14] Most of those interviewed pointed out that, although the various broadcast television channels are registered under separate corporations, the majority shareholder in all of them is the entrepreneur Angel Remigio González.[15]

29. According to the information received, the current corporate structure of the media, and especially of radio and television, is based on a set of laws and practices that has been in effect for the past two decades.

30. The Special Rapporteur has also received information on radio broadcasting and concerns regarding the legal framework and criteria for granting radio frequencies. One basic concern is that the only criteria the Government uses to grant frequencies are economic ones that effectively deny access to minority groups such as indigenous peoples, youth and women. The procedures for the granting and renewal of broadcast licenses should be clear, fair and objective, and the importance of the media in fostering informed participation in democratic processes should be given due consideration.

31. In this sense, the cancellation of the television program “T-Mas de Noche,” which had been critical of the Government, within a context of a possible de facto monopoly on broadcast television channels and complaints about possible conflicts of interests of Government officials and media entrepreneurs, points to a situation that is not at all favorable for the full development of freedom of expression. President Alfonso Portillo Cabrera has expressed willingness to look for ways to solve these problems. A public offer to make time available on a State-run television channel is an example of the President’s good will in this regard.

32. The Office of the Special Rapporteur wishes to point out that democratic criteria ensuring the participation of all sectors of Guatemalan society should be taken into consideration when granting licenses for television channels and radio frequencies. Bidding procedures that do not go beyond economic considerations, or that do not give a fair chance to all social sectors, are incompatible with participatory democracy and the right of freedom of expression and information enshrined in the American Convention on Human Rights.

3. Draft Reform of the Law on Elections and Political Parties

33. The Office of the Special Rapporteur would like to call attention to the Guatemalan Government’s efforts to reinforce freedom of expression, efforts reflected in its work on and the draft reforms to the Law on Elections and Political Parties. Attention must, however, be given to basic aspects of the draft reform in relation to the principles set out in Article 13 of the Convention.

34. Various groups that will be affected by the reform have expressed concern to the Office of the Rapporteur with respect to the Supreme Electoral Court’s imposition of a maximum time period for election campaigning and of mandatory registration by media of their advertizing rates for campaign ads. This goes against the legislation on freedom of expression now in force. The Special Rapporteur points out that the tying of such requirements to the circulation of information may constitute a restriction on freedom of expression.

35. The Special Rapporteur notes that there is a need for clear and precise rules defining the relationship of Government authorities with the media. Lack of transparency or clarity and any conflict of interest of public officials or businesspeople could restrict freedom of expression. Government officials and businesspeople could try to influence the content of radio or television programs or press articles in order to hurt or help certain politicians, governmental authorities or other persons in exchange for direct or indirect benefits for certain companies.

36. The Special Rapporteur would like to point out that a careful and detailed study should be made of the changes to the Law on Elections and Political Parties now under consideration, keeping in mind that freedom of expression can only be subjected to the restrictions permitted by Article 13 of the American Convention. It would be beneficial to give all parties affected by the law, and especially the media, political parties and other groups representative of society, the opportunity to take part in such a discussion.

Recommendations

37. With the foregoing in mind, the Special Rapporteur for Freedom of Expression wishes to recommend that the State of Guatemala:

1. Immediately adopt measures to put a stop to the threats, attacks and murder perpetrated against journalists and other social commentators who are exercising their right to freedom of expression. Article 1 of the American Convention sets out the obligation of states to respect the rights and freedoms recognized therein and to ensure to all persons under their jurisdiction the free and full exercise thereof. From the obligation to ensure the free and full exercise of the rights and freedoms enshrined in the Convention, it follows that states are obligated to prevent, investigate and punish violations of the rights recognized in the Convention, to restore any right so violated, and as necessary, to make reparation for damage caused by the violation of human rights.[16]

2. Pursue the draft reforms to the Law on Elections and Political Parties, and concerning access to information and the action of habeas data, which the President has promised to support, while taking into consideration the recommendations and suggestions put forward by representatives of civil society. The bills in question should contain provisions for an independent appeals body so that any exceptions provided for by law can be challenged directly without having to resort to the final judicial instance.

3. Enact the measures needed to assure that the antitrust provisions of the constitution can be enforced and take progressive steps to ensure minority groups access to the media.

4. Carry out an in-depth investigation of the possible existence of a de facto monopoly in broadcast television and implement mechanisms that will assure greater plurality in the granting of channels.

5. Put in place clear rules to avoid conflicts of interest among Government officials and the media.

6. Review the regulations governing the granting of radio and television licenses with the purpose of incorporating democratic criteria guaranteeing equal opportunity.

Notes Ch. IX_______________________________

[1] American Declaration of the Rights and Duties of Man, adopted by the Ninth International Conference of American States, Bogotá, Colombia, 1948, Chapter One, Article IV.

[2] American Convention on Human Rights, Chapter II, Article 13.

[3] Inter-American Court of Human Rights, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 19 American Convention on Human Rights). Advisory Opinion OC-5/85, Series A No. 5, paras. 30-32.

[4] Political Constitution of the Republic of Guatemala, Title II, Chapter I, Article 35.

[5] Other paragraphs of this same article stipulate that:

Publication of a denunciation, criticism or accusation against public officials or employees regarding acts carried out in the exercise of their official duties shall not constitute an offense.

Public officials or employees may go before a tribunal de honor, constituted according to the law, to ask it to declare that the article in question is based on inexact information or that the charges against them are unfounded. Any judgment favorable to the victim must be published in the same medium that published the original accusation.

The activity of the mass media is considered a matter of public interest and these may not be expropriated. They may not be closed, embargoed, intervened, confiscated or seized for any offense or crime committed in the dissemination of ideas, nor may the operations of enterprises, workshops, equipment, machinery or other fittings be interrupted.

Free access to sources of information is considered a right and no authority may limit it.

Pressure or threats related to authorization, limitation or cancellation of concessions granted by the State shall not be used to limit the exercise of the freedom to disseminate ideas.

Any trial regarding an offense referred to in this article shall be heard before a jury. All matters related to this constitutional right are regulated by the Ley Constitucional de Emisión del Pensamiento (Constitutional Law on the Dissemination of Ideas).

Owners of mass media shall provide their reporters with economic protection in the form of life insurance.

[6] American Convention on Human Rights, Chapter II, Article 13.

[7] The Political Constitution of the Republic of Guatemala, Title II, Chapter I, Article 30, on access to information in the hands of the State, stipulates that “all acts of the administration are considered public. Interested parties have the right to obtain reports, copies, reproductions or certifications upon request, and to access any records they may wish to consult, except when military or diplomatic matters related to national security or information provided by individuals under a guarantee of confidentiality are involved.”

[8] The Political Constitution of the Republic of Guatemala, Title II, Chapter I, Article 31, on habeas data, stipulates that “Everyone has the right to know the information relative to them in files, records or other state registers, as well as the purpose of that information. They also have the right to correct, rectify and update such information. The keeping of registers or files on political affiliation is prohibited, except when done by election officials or political parties.”

[9] The Political Constitution of the Republic of Guatemala, Title II, Chapter II on Social Rights, Section Ten, Article 130, on the prohibition of monopolies, stipulates that “Monopolies and special privileges are prohibited. The state shall place limits on the operations of enterprises that, in detriment to the national economy, take over or move toward taking over one or more branches of industry or a single commercial or agricultural activity.”

[10] The photojournalist was murdered while covering a demonstration protesting a hike in public transportation fares and attacks against Christian Alejandro García, employed by a news program, and Julio César Cruz, another photojournalist. It should be stressed that after the murder, high-level Guatemalan authorities requested the help of the Office of the Special Rapporteur in following up on the problems of security and protection of Guatemalan journalists. According to information provided by the State, Mr. Martínez was killed by private security guards, one of whom the Tribunal de Sentencia sentenced to 15 years in prison. Cuerpo Professional de Seguridad, the company that the perpetrators worked for, is now being sued in civil court by the family of the victim. An initiative to grant Mr. Martínez’s underage children a monthly stipend until they reach legal age is under consideration in the Commission on Legislation and Constitutional Matters of the Congress.

[11] On July 14, 2000, the Paris-based Reporters without Borders issued information on threats against at least six CERIGUA journalists over the previous two months. Special mention was made of a threatening telephone call received by Ileana Alamilla, Director of Reporters without Borders, on June 23, 2000. According to comments submitted by the state, the complaint regarding threats made against Ileana Alamilla and the six CERIGUA journalists was remitted to the Attorney General’s Office and to the Human Rights Ombudsman.

[12] According to information submitted by the State of Guatemala, the Director General of the National Civil Police and the Attorney General of the Republic have been requested to increase and speed up efforts to identify the perpetrators.

[13] In its comments, the State mentioned that members of Congress unanimously approved a petition requesting that life and medical insurance be made available to journalists. A bill on this matter is currently under study in the Committee on Legislation and Constitutional Matters of the Congress.

[14] In this regard, see IDEA (Instituto para la Democracia y la Asistencia Electoral), Democracia en Guatemala, La Misión de un Pueblo Entero, Bogotá, 1999, pages 199 and 201:

“[T]he evolution of television manifests the creation of a private monopolistic consortium with low levels of competition. Of the five channels now available, four (3, 7, 11, and 13) are associated with a consortium in which Mexican capital predominates. The concentration of media power in the hands of this foreign consortium effectively gives it a tool of extraordinary economic, cultural and informative power, with negative implications for the national democratic process.”

IDEA also pointed out that:

“One of the consequences of (…) lack of competition (in television) is the absence of diversity in news and entertainment, in domestic production. (…) (T)elevision in Guatemala has undergone an alarming process of stagnation and even regression.”

[15] See footnote 10 on domestic legislation on monopolies.

[16] Inter-American Court of Human Rights, Velásquez Rodriguez Case, Judgment of 29 July 1988, Series C No. 4, para. 166.