CHAPTER V

FREEDOM OF THOUGHT AND EXPRESSION1

A. General Considerations

1. As indicated in Chapter I of this report, the Fundamental Statute of Government,2 provides for freedom to express thought by any means of dissemination, without prior censorship, except for the limitations stipulated by law.3

2. The Fundamental Statute also states that the correspondence, private documents and books of any person are inviolable.4

B. Legal Restrictions on this Right

1. By Decree Law 45-82, which declared a state of siege throughout the national territory, this right was temporarily suspended until the state of siege was terminated on March 23, 1983, although it should be indicated that in practice what was involved was more a matter of restrictions and limitations on the exercise of this right.5 The restrictions were reinstituted subsequently when civil liberties were suspended on June 29, 1983 and this situation prevailed until the fall of General Ríos Montt’s Government.

2. Article 14 of the above-mentioned decree stipulated that “organs of publicity are required to refrain from publishing anything that might cause confusion or panic or aggravate the situation. Consequently, they are prohibited from publishing any information by seditious groups.”

Likewise, Article 17 provided that “all public relations services of government ministries and all publications dealing with the current emergency are centralized in the Public Relations Department of the Office of the President of the Republic, which shall be the only source of information during the period this decree is in force.”

3. As a result of Decree Law 45-82 and during the time it was in force, Decree 9 of the Constituent Assembly issued on April 28, 1966, or the Law on Expression of Thought, was suspended, in the Commission’s view.6 This law states that expression of thought is free in any form and in no case may a bond or condition be required for such expression, nor shall it be subject to prior censorship. Freedom of information is unrestricted, and journalists shall have access to all sources of information. The Commission understands that when the state of siege is lifted, this law will again take effect.

4. The 1965 Law of Public Order,7 provides that all decrees restricting guarantees must be immediately and widely published by all mass media, as must any other information concerning the emergency. In addition, publicity organs, whatever the means of dissemination they employ, are obligated to publish free of charge in their first edition, decrees, provisions and information on the subject involved, as soon as they are issued. If it does not do so, the publication will be subject to a fine.

Article 35 of the above-mentioned law provides that during the state of emergency, the news media is prohibited from publishing anything that might cause confusion or panic or aggravate the situation in such cases, and if they make tendentious comments on the circumstances, the director shall be warned by the appropriate authority. If he does so again, prior censorship may be imposed.

5. Government Decision 75-82 provides for government control of radio and television stations, which shall be exercised by the General Department of National Radio and Television Broadcasting.

C. Freedom of Thought and Expression in Practice

1. According to information received by the Commission during its on-site visit, when the Government of General Ríos Montt came to power, tensions in the communications media declined substantially regarding the conduct of their professional activities, particularly in news broadcasts. For example, editorials were published in the main newspapers analyzing the origins and causes of the country’s social, economic and cultural problems, and constructive criticisms and comments were published on the general human rights situation.

2. The climate of terror reported by the Commission in its previous report on Guatemala,8 began to disappear, which confirms the fact that the Commission has not received reports about murders, disappearances, detention or abuses of information media representatives as frequently as before. In this connection, the IACHR received testimony from various sources confirming that the extent of violence and in general the personal attacks in this sector had declined considerably.

3. However, beginning in July 1982, following the imposition of the state of siege, journalists were compelled to exercise their profession with caution and to follow strictly the legal provisions set forth in the general considerations of this chapter. Not only was the censorship provided for in Decree Law 45-82 fully in force, but also the practice of self-censorship had again returned, which is understandable given how journalists have been conditioned by the insecurity of their work in recent years.

4. The Commission believes that this behavior can to some extent be attributed to the vague and imprecise wording of the restrictive rules in Decree Law 45-82. Phrases like that of Article 14 of the decree, which imposes on information organs the obligation to refrain from publications that “may cause confusion or panic or aggravate the situation,” can be subject to such broad interpretation that they have clearly had an intimidating effect on the press.

5. In this regard, representatives of the mass media interviewed by the Commission agreed that the Government does not exercise censorship expressly, but that journalists must practice self-censorship in the face of the threat from pressure groups and the Government itself, and also, that they felt it was of fundamental importance to establish the extent to which journalists are victimized merely for expressing their own opinions or to what extent the Government interprets their writing and confuses them with those of subversive elements.

6. The Commission found during its visit to Guatemala that there was a climate of fear affecting persons working in the information media. When asked for their off-the-record opinion on this, almost all of the journalists covering the Commission’s visit refused to comment, but the few who did confirmed that self-censorship is the modus operandi for surviving.

7. In addition, leaders of the educational sector,9 unions and professional associations in the labor sector and political parties also noted restrictions on this right. Representatives of political groups affirmed that they encounter severe restrictions on their right to express political opinions, and also that their fear has recently increased as a result of the public warnings by high government officials.10 Religious authorities that have visited the Commission in small numbers or that have been interviewed by it corroborate this feeling of fear ant threat.

8. Finally, it must be stressed that most of the detainees brought before the Special Courts were accused, among other offenses, of distributing or possessing subversive material. The ambiguity and vague definition of this offense, together with the secrecy of the judicial proceedings conducted by the Special Courts, also constituted a serious limitation on the exercise of freedom of expression and opinion, because it was impossible to determine what type of printed material the accused persons had and whether it was actually subversive.

9. The Commission feels that this right is affected in practice by the limitations noted and by the prevailing climate of terror and threat, which inhibits journalists and other sectors of the Guatemalan society from expressing themselves freely and properly performing their respective social functions.

10. Control of the mass media gave the Government of General Ríos Montt full authority to conduct its anti-guerrilla activities without public opinion being able to comment on it, much less debate or criticize specific measures. Under such circumstances, there can be no genuine freedom of expression, nor can Guatemalans be fully informed about the news and important topics on the national and international scene, all of which, as the Commission has repeatedly stated, contributes to the failure to respect other human rights. The Commission hopes that when the state of siege is lifted there will be a return to a climate suitable for the full exercise of this right.

Notes________________________

1 American Convention on Human Rights: Article 13. Article 13. Freedom of Thought and Expression. 1. 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. The exercise of the right provided for in the foregoing paragraph 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. 3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions. 4. Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence. 5. Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.

2 Article 7 of the Fundamental Statute.

3 The political constitution that was in force up to May 1982 guaranteed this right in the same terms but indicated that anyone who abused this right by failure to respect private life and morals would be liable before the law. Moreover, no one could be persecuted or molested for any opinion or act that did not violate the law. (Articles 45 and 65 of the repealed Political Constitution).

4 Article 8 of the Fundamental Statute.

5 Article 2 of Decree Law 45-82.

6 Under that law, the director, chief editor or legal representative of organs of publicity are responsible for representing such organs before courts of justice and government authorities for acts covered by the law. Radio and television news companies shall enjoy the benefits of the law on industrial promotion provided they comply with the requirements stipulated in that law. In addition, the Law on Expression of Thought states that no one may be persecuted or molested for his opinions. However, those who fail to respect private life or morals or commit crimes and offenses legally punishable shall be legally liable. In this connection, the law provides that publications abusing freedom of expression or thought may be subject to a jury trial or punishment in the following cases: a) printed material that involves treason to the country; b) printed material that this law considers subversive; c) printed material that is damaging to morals; d) printed material that fails to respect private life; and e) printed material containing slander or libel.

Under that law, an attack on public officials or employees for purely official acts in the performance of their duties even when they have left their posts at the time accusations are made against them does not constitute slander or libel. Newspapers are required to publish clarifications, rectifications, explanations or refutations sent to them by any natural or corporate person to whom inexact facts are attributed, or against whom accusations are made or who are directly or personally alluded to in any manner. Crimes and misconduct in expressing thought by the mass media shall be judged solely by a jury, which shall declare in each case to the best of its knowledge and understanding, whether the act constitutes a crime or misdemeanor. When any person takes offense at the contents of a printed publication, he may file suit in writing with the court of first instance having jurisdiction over the domicile of the publisher assumed to be responsible. The document filed with the court must meet specified requirements. In the case of an acquittal, the court shall dismiss the case in the same session at which the verdict is rendered, and shall impose penalties at the same session. The court’s decision may be appealed within the following 48 hours, and the convicted person may be released on bail or under his own cognizance, at the discretion of the judge. If an appeal has been filed and heard, the decision of the court of appeals, against which there shall be no recourse whatever, shall be confined to the sentence imposed by the trial judge, and shall not consider or modify the verdict of the jury. In cases of attacks or denunciations against government officials or employees for purely official acts connected with the performance of their duties, a court of honor may try the case at the request of the interested party. Decisions of this court may not be contested, and the publicity organ ordered by the court to publish it shall do so without preceding it or adding to it any comment, although if so desired, a separate article may apologize or give explanations to the offended party.

7 Article 34 of the Law of Public Order.

8 See OAS/Ser.L/V/II.53, pages 87 and 89.

9 While it is true that the number of attacks against professors, university leaders and employees of educational centers has declined considerably, the Commission received in Guatemala a list of persons connected with this sector who were kidnapped following the coup d’etat.

10 The following article, for example, appeared in La Prensa Libre of Guatemala on January 15, 1983: MÉNDEZ RUIZ REITERATES THE PROHIBITIONS ON MAKING POLITICAL STATEMENTS. The Minister of the Interior, Colonel Ricardo Méndez Ruiz, yesterday repeated the warning to political parties to refrain from making political statements, otherwise further measures may be taken.

Colonel Méndez was asked by Prensa Libre about the possible abolition of political parties operating before the coup d’etat, such as for example, the PR, PID, FUN, MLN, DC, FUR, CAN, PNR and committees on behalf of parties. He pointed out that abolition of these parties is still under study and nothing specific has been decided to date. However, he said that these groups are prohibited from making statements because the country is in a state of emergency. If, despite the restrictions that have been placed on them for some months, these parties continue to act or make statements through the mass media, that might “precipitate their abolition,” or other steps might be taken.

President Ríos Montt recently stated to the press that abolition of political parties would be desirable, and that that decision “is under study.”