LIBERTY OF EXPRESSION, THOUGHT AND INFORMATION
American Declaration. Article IV. Every person has the right to freedom of investigation, of opinion, and of the expression and dissemination of ideas, by any medium whatsoever.
1. On October 20, 1975, the Commission sent a communication to the Government of Chile requesting information concerning general points related with liberty of expression, of thought, and of information.
2. The questions addressed to the Government of Chile were the following:
1. Has the Government approved the draft law which concerns the media of social communication and which was prepared by the Special Commission designated for the purpose by the Commission on Constitutional Reform?
2. Since August 1, 1974, has any newspaper, or any news agency, or any radio or television station been subjected to censorship?
3. Since that same date, has any medium of social communication or any newspaper reporter been punished or penalized for abuse of liberty of expression of thought or information? In such case, what penalties were imposed (closing, detention, expulsion, etc.) and what authorities applied them?
4. Have some newspapers caused publishing, and have any radio or television stations ceased to operate since August 1, 1974?
5. If such acts have occurred, has the disappearance of those media communication been caused, in some measure, by an official policy of control over the distribution of newsprint among the newspapers or the placement of governmental notices in newspapers and broadcasting stations?
6. Is there any restriction, in public educational institutions or in private schools, in any or some of their grades, on the persons who do the teaching because of their ideology or their political background? If the answer is affirmative, what are these restrictions and what are the standards that authorize them?
7. Does the Government of Chile know that students and professors have been subject to discriminatory treatment because of their ideology or their political background? In such case, what measures have been adopted?
8. Has any private educational institution been closed, because of the political ideology attributed to its directors or professors? Would it be possible—if this has occurred in some instances—to give detailed information about the case?
2. In reply to this note, the Government of Chile stated the following:
I have the honor to address Your Excellency with reference to your notes dated October 7 and 20, in which the Commission sent my Government various questions of a general character and requested a copy of certain background information.
On this matter, I can inform you, Mr. Chairman, that the Government of Chile, as it has done up to the present, will continue to respond and to provide background information in response to every request that the Inter-American Commission addresses to the Government concerning individual denunciations that have been received about presumed violations of fundamental rights and liberties.
Since the notes to which reference has been made do not refer to individual cases, and in the assurance that the questions of a general nature that have been formulated have their origin in denunciations received by the Commission, my Government awaits concrete inquiries in order to respond to them with the maximum promptitude, as has always been the conduct of Chile.
I reiterate to the Chairman the assurances of my most distinguished consideration.
(signed) P. Carvajal
The note transcribed was dated January 8, 1976, but it was received at the Commission on January 22.
In the introductory Chapter, points 11 and 12, of this report, we have already criticized this note. We refer to the statements in that place.
A reply of this nature has kept us from having information from the Government of Chile with respect to points of a general nature included in the questionnaire.
3. In a note of October 23, 1975, the Commission wrote to the President of the Círculo de la Prensa [Press Association] to ask him, among other things: a) since August 1, 1974, have any acts been carried out which signify directly or indirectly a restriction on freedom of expression, freedom of communication of thought, or of information, through the press; b) whether it can be asserted that there exists in Chile some form of official censorship, or of self-censorship imposed due to a well-founded fear of reprisals, whether on newspapers, on reporters, on news agencies or in foreign correspondents; c) whether any discrimination is practiced—whether in the distribution of newsprint, in the placement of official announcements, or in other ways—between the press that supports the present Government and the press that does not; d) whether, since August 1, 1974, any newspaper has been suspended or closed, whether any newspaper reporter has been detained or any foreign correspondent expelled, and if so, based on what reasons; e) whether, in Chile, the press is able to carry out its mission of serving as a vehicle for freedom of thought; and f) whether the situation of the press in Chile has improved, worsened or remained stationary since August 1, 1974.
The Círculo de la Prensa did not reply to this note.
4. On the same date, the Commission sent a communication of the same nature to Mr. Julio de Mezquita Neto, then President of the Inter-American Press Society.
That inquiry was answered on November 11, by the General Manager of the SIP [Sociedad Interamericana de Prensa], in the name of the new President of the Society, Mr. Raymond E. Dix, and he sent as an answer and as an annex to the letter of November 11 to which we have referred, a copy of the special report concerning Chile prepared by two envoys of the SIP by direction of the Executive Committee of that Society, to report to the recent General Assembly of the Society, carried out in Sâo Paulo, Brazil, in October and November, 1975.
The authors of the reports are Messrs. Guido Fernández, for the newspaper “La Nación” of San José, Costa Rica, and David Meissner, of the newspaper “The Milwaukee Journal.”
The conclusions of this report are the following:
What conclusions can you come to with regard to the present state of liberty of the press in Chile?
Chile cannot be said to be living normal times at present. It is suffering the effects of what one prominent Chilean has called two traumas: the years of disintegration of the Government of Allende, and the military regime of the Junta.
The present Government recognizes openly that limitations exist on civil and political rights, but they justify these as necessary for maintaining order. They likewise recognize that these restrictions indirectly affect the liberty of the press. The critics of the Government assert, with equal justification, that the effect is more than indirect. The facts already noted indicate that there have been cases in which the Government has deliberately tried to intervene or has intervened directly in the work of the national and foreign press. Newspaper publications of a political nature are prohibited. Certain subjects, particularly those related to the operations of military security and the personalities of the Government are likewise prohibited. Some communications media have been the object of official coercion, censorship or closing. Newspaper reporters have been arrested and have been placed at liberty.
At the same time, the situation in Chile is changing. Prior censorship as a general policy has been replaced by self-censorship of the communications media. Recently, the press has shown a firmer tendency to become independent, particularly as respects economic and social policy. Many criticisms and accusations against Chile that have been published in foreign countries have been reproduced locally in Chile.
The Government itself has talked of adopting a less rigid attitude in the future, as the country returns to what it considers to be normality.
Here is the key to the matter. It may be that Chile is not living in normal times and it may be that the country is going through an “emergency state” as the Government adduces. But, since it is a state of emergency imposed by a military regime and not by law, an atmosphere of arbitrariness has been created that it felt in all spheres of Chilean society.
Criticism is permitted, but it exists only at the will of the Government. The most prominent critics may express their opinions because, in the criteria of the Government, their credentials are spotless. Their motives are not under suspicion. Those critics who do not enjoy the same confidence keep a discreet silence or expose themselves to censorship.
From day to day in Chile, one-newspaperman comments, “the liberty of the press depends upon the tolerance of the authorities.” Liberty of expression is not constitutionally guaranteed. The unrestricted right to dissent does not exist nor does the right to commit unintentional errors in judgment or in the expression of points of view.
The spokesmen and partisans of the Government are optimistic and affirm that the situation will improve and that more liberty will gradually be permitted. It has been promised that there will be new constitutional provisions concerning the communications media and concerning the liberty of the press. But the conclusions of today cannot take as a basis the promises that are still to be fulfilled. And the significance and effectiveness of these promises, even if they are fulfilled, is doubtful. Some of the projected constitutional provisions could limit the same liberties that they profess to guaranty.
The Commission harbors the hope that the future of liberty of the press in Chile may be optimistic. The country has a long history of respect for democratic principles, liberty and the law. But, as has been said by one prominent Chilean editor who is not known for his opposition to the Junta, “if Chile is judged according to the standards of liberty of the press in democracies that are living in normal situations, it is evident that there is no liberty of the press in Chile.” Greatly to its regret, the Commission cannot but agree with this conclusion.
5. On October 23, 1975, the Commission wrote to Dr. Carlos Figueroa, President of the Association of Radio Broadcasting Stations of Chile (ARCHI), requesting from him, with respect to the situation of the radio and television stations of Chile after August 1, 1974, information similar to that which had been requested on the subject of the written press, from the Círculo de la Prensa of Chile and the Inter-American Press Society.
The answer of the Association of Radio Broadcasters of Chile bears the date of December 26, 1975. It was supplemented by a communication dated January 7, 1976.
This institution reported, in synthesis, the following:
a) Since August, 1974, there have occurred, in the field of radio broadcasting, various acts that affect liberty of expression or liberty of information.
- Radio Balmaceda, of Santiago, was closed for 10 days, on March 31, 1975, by order of the National Bureau of Social Communication.
- When this closing was lifted, the measure of prior censorship was imposed on the radio station by the Chief of the Zone in a State of Emergency, in accordance with the provisions of Internal Security of the State. This measure was lifted at the end of April 1975.
- On August 22, 1975, prior censorship was imposed anew on Radio Balmaceda, which measure was lifted on September 5.
- On December 11, 1975, the Government issued Decree-law 1281, which conferred broad powers on the chiefs of the zones in a state of emergency to close, for up to six days, radio stations, newspapers and television channels (see above, Chapter I, point 9).
- On the subject of television, the Government has total control over the National Television Channel and indirect control over the University Channels, since Rector Delegates of the Junta of Government have intervened at the universities.
- When Radio Balmaceda was closed (in March, 1975), the Association of Radio Broadcasters of Chile protested the illegality and inappropriateness of the measure, to the Government. When prior censorship was imposed the second time (August, 1975), the President of the Committee on Expression of the Inter-American Association of Radio broadcasting (AIR) intervened actively to have the measure lifted. In turn, the promulgation of decree-law 1281 provoked the reaction of all the communications media and all of the related guild groups, in view of which reaction the Government has manifested its disposition to “regulate” the new authority and has requested the guilds to give their observations concerning the matter. The unanimous position of the guilds is to fight for the derogation of decree-law 1281 to which reference has been made.
From al this, the Association of Radio Broadcasting Stations of Chile concludes that “while it is true that there have been directly suppressive acts against liberty of expression as guaranteed by the Political Constitution of the State, there does exist the possibility of dissenting and of protesting measures through the communications media and through the guild organizations that unite the owners and the workers of the media.”
It adds, however, that “note must be taken of the fact that the country lives in a Zone of Emergency, which confers on the Military Chief of the Zone broad powers in the subject of restricting free information,” and that “in addition, the Junta of Government combines in itself, by dispositions issued by itself, the Constituent, Legislative and Executive Powers.”
b) Except in the specific cases indicated, official censorship of radio does not exist in Chile. It is evident, however, that radio broadcasters must be careful in their programming and in the broadcasting of news and commentary, since the country is in a State of Siege and is declared to be, in the Emergency Zones, under the command of specific Military Chiefs in all the provinces of the country
c) Decree-law Nº 77 and the suspension of all political parties that are non-Marxist, remain in effect, but the non-Marxist parties retain the property and the management of their communications media. The situation of television is different, since television is state-operated in Chile.
e) In response to the question as to whether radio broadcasting in Chile may carry out, at present, its mission of serving as a vehicle of free thought, the Association of Radio Broadcasters of Chile stated that “the answer is negative, if there are taken into consideration the State of Siege, the Emergency Zone, the proscription of Marxist parties and the suspension of the other political parties. But without the legal framework indicated, there is broad possibility for information, opinion and debate.”
e) The Statute of the Media of Social Communication prepared by the Sub commission of the Commission on Constitutional Reform, consecrates for the future Constitution the principles of liberty of information and opinion that Chilean private radio broadcasters support as the fundamental basis of their existence. The standards approved by the Commission are complete and effective.
f) In response to the question as to whether the situation of radio and television has improved, worsened or remained stationary since August 1, 1974, the Association of Radio Broadcasters of Chile reply that “the situation has been becoming more liberal since the middle of 1974. However, some retrogression in this matter has been noted lately, which we consider to be very serious with the issuance of decree-law 1281.”
6. It is appropriate to note here the essential points of decree-law 1281, issued last December:
a) It authorizes each Military Chief, in his respective Zone, to suspend the printing, distribution and sale, for up to six editions, of newspapers, magazines, pamphlets and printed matter in general, and the transmission, for up to six days, of radio broadcasting stations, television channels or any other similar medium of information.
b) In order that the Military Chief may exercise broad powers, it is sufficient that, in his judgment, the organ which is the object of the sanction shall have issued opinions, news or communications tending to create alarm or displeasure in the population (sic), or that they distort the true dimensions of the facts, whether they are manifestly false or are contrary to instructions previously imparted for reasons of internal order by the same Military Chief.
c) In case of repetition of offenses, the Military Chief of the Zone may decree the intervention and censorship of the respective media of communications and their shops and installations.
d) Against any of these measures, recourse may be taken, within 48 hours, before a Court Martial or a Naval Court, which shall resolve the complaint “in conscience”. The recourse does not suspend compliance with the measure.
It is easy to infer what the effect may be of this last proviso when newspaper or radio stations may be suspended for up to six days: the recourse before the Court Martial in fact lacks practical effectiveness. The newspapers, periodical publications, radio stations, etc., are, therefore, at the mercy of a Military Chief who can suspend their editions or transmissions for up to six days because this Chief considers, for example, that the medium has disseminated news tending to create displeasure in the public, without the existence—with respect to newspapers and radio—of an effective judicial remedy to limit such grave encroachment on liberty of expression as this involves.
7. It is not surprising, therefore, that decree-law 1281 of 1975, has aroused such strong reactions even among the organs that normally applaud the measures of the Junta of Government.
Thus, the Daily “El Mercurio” of December 12, 1975, in an editorial commentary entitled “Restrictive Legal Standard for the Press,” states that decree-law 1281 “opposes the constitutional guaranty of liberty of opinion and could not have been issued in exercise of the Constituent Power that was opportunely assumed by the Honorable Junta of Government itself.”
The editorial adds, “this legal regulation involves a type of crime the characteristics of which remain at the discretional criteria of the military authority. This is a veritable “crime in blank” since its constituent requirements are determined administratively. Who, if not the military authority, decides when information ‘creates alarm or displeasure in the population’? Who, if not the authority, declares ‘distorted the true dimensions of the facts’?
“There is no way in which the newspaperman may determine before his supposed crime, the illicit character of some commentary or news that may give rise to the corresponding sanction. This sanction may supervene at any moment and cannot be stopped by any means. The right to complain before the Court Martial or a Naval Court does not suspend compliance with the sanction, and this sanction can cause its prejudicial effects even when the Court considers that the sanction should not be been adopted.
“It is noteworthy that this decree-law was issued without the prior knowledge of the National College of Newspapermen or the knowledge of the media of information. A measure of such gravity could well have been communicated in advance, at least, in order that the affected parties might know the specific reasons for its issuance by the Honorable Junta of Government.”
Despite such justified complaints—insistently repeated by other organs of opinion and by associations of newspapermen and radiobroadcasters, the Government of Chile has declared, in an official communiqué of February 6, 1976, that it will not derogate decree-law 1281 (see “Diario de las Américas” of February 7, 1976).
8. To the severely restrictive measures of a general character contained in the decree-law to which reference is made, there should be added others of a private [or individual] character.
- On November 3, 1975, the Government closed definitively the periodical publication “Política y Espíritu”, an organ of high status culturally and among periodicals. In edition Nº 245 of the Magazine “Qué pasa” (December 31, 1975) it is stated that the reasons for the closing of “Política y Espíritu” remain unknown” (page 5, article entitled “Error that is maintained”.)
- On January 20, 1976, the Commander of the military garrison of Santiago, General Garay, closed Radio Balmaceda for an indefinite time, accusing it of having carried out an “anti-patriotic campaign”. The owners of the radio station entered a request for recourse before the competent Court Martial which, on February 4, 1976, lifted the closing.
9. On the subject of liberty of expression in motion pictures, some of the provisions of decree-law 679 (see above, Chapter I, point 10) turn out to be clearly incompatible with Article IV of the American Declaration of the Rights and Duties of Man. See, for example, Article 9, which, in combination with Article 15, permits punishment with the sentence of imprisonment, of a person who exhibits a motion picture which, in the judgment of the Qualifying Council “foments or propagates doctrines or ideas contrary to the fundamental bases of the Motherland or of the nationality, such as Marxism of others” (sic) or (which may be contrary to good customs.” A prior censorship orientated by guidelines that are so vague, and reinforced by sanctions that deprive the party of his liberty, is at odds with the letter and spirit of Article IV of the American Declaration, to which reference has been made.
10. The Permanent Representative of Chile to the Office of the United Nations in Geneva presented to the Commission on Human Rights of that organization, on February 16, 1976, document E/CN.4/1207, entitled “Study of the reports on violations of human rights in Chile, with particular reference to torture and other cruel, inhumane or degrading treatment or punishments.” A copy of that document was sent to the Inter-American Commission on Human Rights by the Permanent Representative of Chile to the Organization of American States under a note of March 8, 1976, which arrived the following day.
There were analyzed, in that document, some aspects of the definitive report of the Ad-Hoc Working Group of the Commission on Human Rights of the United Nations (Chapter II). Section C of that Chapter was entitled “The media of social communication” (Page 6).
In defense of decree-law 1281 and the attitude of the Government of Chile with respect to that decree, objection is made to the report of the Ad-Hoc Working Group in that it says nothing about the facts:
“i. That it was the Government of Chile itself that requested the organs to which the decree would apply to give their opinion concerning its provisions.
“ii. That the Government requested that the opinions be disseminated by the media of social communication.
“iii. That after hearing the views of the Association of Radio Broadcasters of Chile, of the College of Newspapermen, and of the National Press Association, the Government offered to issue regulations for application of the above-mentioned decree-law.”
These considerations are not sufficient, in the judgment of this Commission, to disprove the clear tendency to limit liberty of expression and information that characterizes decree-law 1281.
11. In the same document, with regard to the case of Radio Balmaceda, there is invoked, as defense, “the fact that with a hundred radio broadcasting stations in existence the length of the country, application was made in only one case of the provisions deriving from the Emergency Zone, ordering the suspension of some of its broadcasts.” This does not justify in any way the drastically restrictive nature of the general provisions that were applied in prejudice to Radio Balmaceda. Rather, it constitutes a clear symptom of the high degree of efficacy of such restrictions. By being very effective they are no less damaging to liberty of information. On the contrary, they would not be as damaging if they were less effective.
12. In conclusion, we must take up a matter of great importance.
The Government of Chile, in formulating observations on our first report, denied that the crime of opinion had been instituted in that country.
In our first report, we stated that decree-law 77 implied the creation of a veritable “crime of opinion.” We added that “it is inadmissible that, because of the mere fact of upholding and disseminating (underlining ours) a certain ideology, a man becomes a kind of ‘untouchable’ … etc.”
Whey did the Government of Chile make a truncated reference to what we affirmed? Why did it say “upholding” and not “upholding and disseminating,” as we did? For a very simple reason: because, according to the unmistakable tenor of Article 3 of decree-law 77, the advocacy of any aspect of Marxist doctrine, or of any other doctrine that is substantially consonant with the principles of that doctrine, constitutes a crime that is punishable with imprisonment, relegation or expulsion, and absolutely perpetual disqualification for occupying any kind of position in governmental or para-governmental entities. All this may occur with the sole fact of someone’s disseminating orally the Marxist doctrine or a doctrine that resembles it.
But, in addition, with the word “upholding” that it has employed in its observations, the Government of Chile goes as far, and beyond, making it unnecessary to add “disseminating,” because “upholding” is, in our language, as is “supporting,” the equivalent of “arguing in favor of,” that is, to give reasons in favor of an ideology, and not just to accept it in the intimate silence of our intellect. Therefore, whoever “upholds,” maintains and defends; and he who defends or maintains Marxism (thus, indeterminately, in a manner that covers equally all the theories of Mr. Marx, whether it concerns added value, dialectical materialism, the class struggle, etc. etc.) may go to jail, to relegation, or be expelled, and remain disqualified for an indefinite period for carrying out any public functions or similar responsibilities. That is the creation of a “crime of opinion.” And decree-law 77 continues in full force.