CHAPTER VI
FREEDOM 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. The Commission stated in its Second Report on the Situation of Human Rights in Chile (pp. 141-143) that it had not received the cooperation of the Chilean Government in obtaining facts and background information and had thus been unable to make an informed judgment as to the way in which national and international standards guaranteeing freedom of opinion, expression, thought and free flow of information were being applied in that country.
2. The Commission was therefore forced to base its assessments on the data and information provided to it by groups such as the Association of Radio Stations of Chile and the Inter-American Press Association, in response to questionnaires sent to them by the Commission.
3. The report concentrates mainly on the contents of Decree-Law 1281 of December 11, 1975, which gives the military authorities very broad powers to exercise discretionary control and sanction over the activities of newspapers and magazines, radio stations and all communications media. It will be recalled that this decree aroused protests at the time from the media and the trade unions of that sector. These demonstrations of general protest led the Government to announce its willingness to reexamine the situation, and to take into account any observations that the sectors affected might wish to make on the question; its aim was subsequently to issue improved regulations of the decree under attack.
4. One of the chief criticisms of this decree was made in an editorial in the newspaper “El Mercurio”: it stated that Decree-Law 1281 itself creates a new crime, a veritable “crime in blank”, the constituent nature of which is determined administratively, at the discretion of the military authority.
5. On November 30, 1976, the Commission again wrote to the Chilean Minister of Foreign Affairs requesting information on this same question, the observance of human rights. It asked the following specific questions in connection with freedom of expression, thought and information, and advised the Minister that he was being asked to provide this information in order to implement Resolution AG/RES. 243 of the General Assembly of the Organization, which entrusted the Commission with preparing a new report on the matter:
III. Freedom of Expression, Thought and Information
1. Is Decree-Law 1281 still in effect? If it has been amended or repealed, we should like to know the text of the amendments, or the date of its repeal.
2. Has the Government approved the bill on the mass communications media prepared by the Special Committee set up for that purpose by the Commission on Constitutional Reform?
3. Since March 12, 1976, has any newspaper, news agency, or radio or television station been subject to censorship?
4. Since that date, have sanctions been imposed on any mass communications medium, or on any journalist for abusing freedom of expression, thought or information? If so, what sanctions have been imposed (confinement, detention, expulsion, exile, etc.) and by which officials?
5. Have any newspapers ceased publication, or any radio or television gone off the air since March 12, 1976? If so, has the shutting down of these media been due, to any extent, to the official policy of control over the distribution of newsprint among the newspapers over the placement of government notices in newspapers and broadcast stations?
6. Is there any restriction, in public educational institutions or in private schools, in any or some of their grades, on who may do the teaching, on account of their ideology or political background?
7. Does the Government of Chile know whether any students or professors have been subject to discriminatory treatment because of their ideology or political background? If so, 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 been so in some cases—to give detailed information about the closures?
6. In reply to this note, the Government of Chile made the following statements in a note dated January 27:
The legal provision (Decree-Law 1281) is in full force. Subsequent to its promulgation, Decree-Law Nº 1387 of March 31, 1976 determined the meaning and scope of the law, saying that “the formalities of application and the right to appeal provided for in Article 34, paragraph a) of law 12.927 on the Security of the State—complemented by Decree-Law 1281 of 1975—are in effect only with respect to the exercise of the powers granted by this specific legal provision to the Military Chief of the Emergency Zone, and it does not necessarily follow that use by the pertinent authority of the remaining powers provided for in the said Article 34 of Law 12.927 is regulated by such special measures.
According to this statement, then Decree-Law 1281 is in full force. A later decree (Nº 1387, of March 31, 1976), it is added, determined its meaning and scope. However, the determination of its meaning was extremely difficult, if not impossible, for one who did not have available the complete text and background of the decree. This picture of doubts and uncertainties is made complete by the statement in the Minister's note to the effect that the regulatory measures that had been promised, and that had raised such high hopes within the trade unions, have not yet been passed. According to the note, the bill in reference is under study, “to be presented to the Honorable Junta de Gobierno for legislative approval.”
8. As regards the remaining points on the Commission's questionnaire, the note from the Chilean Ministry of Foreign Affairs states the following:
3. Censorship of any newspaper, news agency or radio or television station.
The pertinent authorities replied that this measure has not been applied to any of the aforementioned mass communications media since March 12, 1976.
4. Sanctions applied to any mass communications medium or journalist for abuse of freedom of expression.
The competent authorities were consulted in this regard, and affirmed that this measure has not been applied to any journalist or mass communications medium since March 12, 1976.
5. Whether any newspaper has ceased publication, or any radio or television station has gone off the air since March 12, 1976.
From the date mentioned up to the present time, no newspaper has ceased publication, nor have any radio or television stations stopped broadcasting, whereas the distribution and manufacture of newsprint are private industries in Chile, as is newspaper and broadcasting advertising.
6. Restriction, in public or private educational institutions, at any grade level, as to the teaching staff, because of their ideology or political background.
7. Whether the Government has applied discriminatory treatment.
8. Closure of any teaching institution.
The Ministry of Education was consulted on these three questions, and states that the inquiries made by the Inter-American Commission on Human Rights are answered by Decree-Law Nº 1552 of September 11, 1976 which approved Constitutional Act Nº 3, on Constitutional Rights and Duties.
This Act, in its Article 1, Nº 13, guarantees all persons the right to education, and its Nº 14, de right to freedom of teaching.
Similarly, the 1925 Political Constitution of the State establishes the freedom of education in its Article 10, Nº 7.
It should also be pointed out that the Government of Chile, in its Supreme Decree on Foreign Relations Nº 747 of October 26, 1971, approved the “International Convention on the Elimination of All Forms of Racial Discrimination”, including, inter alia, the right to education.
The Supreme Decree on Foreign Relations Nº 764, of November 4, 1971, published in the Diario Oficial Nº 28.113 of November 30, 1975, adopts the convention on the fight against discrimination in the area of teaching.
The legal provisions quoted show that there is no restriction whatever in Chile on teaching in public or private teaching institutions, and that, pursuant to the constitutional provisions that have been cited, there exists no discrimination whatever with respect to professors or students.
9. However, the Commission has obtained from other sources information on the extent of freedom of expression that is appreciably different from the majority of the assertions contained in the Minister's note.
10. The most notorious case of disregard for this freedom is to be found in the vicissitudes experienced by Radio Presidente Balmaceda in Santiago since 1975 and which have received wide coverage in the press throughout the hemisphere.
11. In the report it presented last year, the Commission related one of the episodes in this series of attacks, in the following words (p. 154):
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.
12. However, this station—the acknowledged owner of which is the Chilean Christian Democratic Party, now in recess as a result of the provisions of the State of Siege—had been subjected to other suspension measures. In March 1975, it had been closed down for a period of ten days. It was also subject to prior censorship until de end of April 1975, and again between August 22 and September 5 of that year. It was again closed down for a period of six days on March 22, 1976, by virtue of a resolution of the Chief of the State of Emergency Zone, on the basis of the Law of the Security of the State and Decree-Law 1281. This measure drew protests from the Association of Radio Stations in Chile, the National Press Association, the Inter-American Radiobroadcasting Association, and the Inter-American Press Association.
13. Some days after this sanction had been imposed, the director of the station, Mr. Belisario Velasco, ex-President of the Christian Democratic Party, was apprehended without warning by security forces on March 24, 1976, and taken to the distant village of Putre, which is located near the frontier with Bolivia, two thousand kilometers away from Santiago; he was kept in the village for more than three months.
14. The Commission received various cables denouncing this unusual occurrence and on the basis of these, it wrote to the Chilean Government requesting information. The Government replied as follows, in a note dated May 19, 1976:
CASE 2024 – BELISARIO VELASCO BARAHONA. Banished to the locality of Putre in the Province of Tarapaca, by virtue of the constitutional powers of the Law of the State of Siege, in effect since 1925. His internal exile was authorized by Decree 1963 of the Ministry of the Interior, dated March 23, 1976. Defense counsel applied for the recurso de amparo before the Court of Appeals; it was rejected, and the decision was confirmed by the Supreme Court of Justice.
15. Subsequently (note 10878 of June 23, 1976), the Government of Chile reported that by means of Decree 2119 of the Ministry of the Interior dated June 21 of the same year, Mr. Velasco Barahona had been unconditionally set free, as of that date.
16. Around the same time, the entire printing of one issue of the magazine Ercilla was confiscated by the authorities.
17. Several editorials described these events as “storm-clouds darkening the horizon of liberty of expression in the country.” These commentaries noted that “no specific crimes have been charged that would account for such drastic measures.” Radio Presidente Balmaceda was accused of inciting a campaign to keep sugar off the market and of transmitting information damaging to the patriotic purposes of the Government. The charge against Ercilla was that it had published tendentious articles aimed at destroying the image of the Supreme Government.
18. Edict Nº 100, issued by the Chief of the State of Emergency Zone on August 18, 1976, prohibited from that date onward the broadcasting over radio or television of any announcement, commentary, reply, criticism, statement, speech, manifesto, pronouncement or communication on the following matters: a) anything related to the measures taken in connection with the expulsion of Eugenio Velasco Letelier and Jaime Castillo Velasco, including any judicial proceedings currently under way; b) anything referring to the incidents that occurred at Pudahuel Airport in Santiago on Sunday, August 15, during the arrival of the bishops who had been detained by the Government of Ecuador during a meeting held in Riobamba, or to the subsequent press conference held by the bishops and the Permanent Commission of the Chilean Diocese. Such a drastic restriction on free expression, selectively imposed on radio and television stations (and not on the print media), aroused fresh protests by several organizations.
19. Some of these organizations have informed the Commission that on various occasions, the authorities have issued summons and warnings to the directors of Radio Chilena, Radio Santiago, Radio Cooperativa and Radio Presidente Balmaceda, threatening to apply the internal security laws of the State and the regulations governing the prohibition of political parties, in connection with their programs, news broadcasts and commentaries. These organizations likewise report that the Government has total control over the broadcasts of the National Television Channel and of the three University Channels. However, they add truthfully that it is possible to discuss these problems with government officials in charge of this area, who do try, in their own way, to define the sphere of application of these restrictive regulations.
20. The Commission has just received the information—which has been widely disseminated by the press throughout the hemisphere—that by virtue of another decree issued by the Chief of the Emergency Zone of Santiago on January 28, Radio Presidente Balmaceda has been shut down indefinitely. Cited as justification of this measure is the fact that the station is owned by the Christian Democratic Party, which has been declared in recess pursuant to Decree-Law Nº 78 of October 11, 1973. The information comment that “more than three years after the fact, in order to close the radio station, there is a curious invocation of a circumstance that has always been public knowledge—as the suspension decree itself acknowledges. The measure has been greeted with a new wave of protests. The director of the station applied to the Military Court of Justice to have the decree to suspend or close the radio declared null and void, but the military authority issuing the decree is requesting in turn that the petition be declared inadmissible.”
21. The new legal regimen on constitutional rights and duties (promulgated through the so-called Constitutional Act Nº 3), which technically entered into force on September 11, 1976, in its Article 1, Nº 12 explicitly and unequivocally recognizes: “Freedom of opinion and information, in all ways and by all means, without prior censorship,* notwithstanding responsibility under the law for such offense or abuse as may be committed in use of these freedoms. However, the court may prohibit publication or circulation of opinions or information affecting moral principles, public order, national security or the private life of individuals.”
22. This paragraph of Article 1 also provides that “the law shall establish a system of censorship for motion pictures and publicity thereof.” It goes on to say: “this Constitutional Act guarantees the right to receive information truthfully, duly and objectively on national and international events, without any limitation other than provided in the first paragraph of this number.”
23. In view of their obvious interest, the remaining provisions of the Act dealing with this important topic of freedom of expression, thought and information are given below:
Any individual or institution offended or unduly alluded to by the mass communication media, shall have the right to have his or its explanation or rectification circulated freely by such mass communications media, under the conditions provided by law.
All individuals and institutions shall have the right to establish, publish and distribute newspapers, magazines and other periodical publications, under the conditions provided by law.
There shall be an autonomous National Radio and Television Council, the composition and operation of which shall be determined by law, entrusted with the authority established thereunder, with a view to ensuring that radio and television stations meet the purpose of informing and promoting the objectives of education set forth in this Constitutional Act.
The law shall provide the way in which radiobroadcasting licenses shall be extended, renewed and revoked.
The State and those universities and individuals which the law shall determine, may establish, operate and maintain television stations.
Individuals who may have been at any time convicted of attempting to subvert the institutional order of the Republic, may not own, direct or manage mass communications media, nor may they in any way participate in functions connected with the publication or broadcast of opinion or information.
Only the law may modify the system of ownership and operation of mass communication media.
Expropriation of mass communications media may be carried out only under a special law which authorizes it, and then only after payment of compensation.
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