RIGHTS OF ASSEMBLY AND ASSOCIATION1
A. Constitutional and Legal Provisions
The rights of assembly and association are guaranteed by the Constitution of Nicaragua, and, therefore, are an integral part of the domestic law of that country. In fact, the Constitution specifies the following in Article 3 as rights of citizens: to run for public office, to assemble, to associate and present petitions in the form determined by law. With regard to the right to assembly, Article 73 establishes this right to meet “in the open” and “shall be regulated by the police laws,” adding that “if the meeting is indoors, peaceful and without arms, no prior permit is required.”
With regard to the right of association, the Constitution establishes in Article 70 that “unions or associations may be established for any lawful purpose; but it is the function of the State to authorize corporative, moral, cultural, economic, scientific and technical organizations.” In addition, it should be pointed out that the criminal laws of the country punish the commission of acts against these rights.2
The Constitution of Nicaragua, in the case of these rights and liberties, is backed by a secondary juridical order. In specific areas such as the political field, the electoral law reaffirms the obligation of the State to guarantee the right of assembly indoors and public demonstrations.3
On the other hand, on the basis of Article 70 quoted above, the corresponding secondary legislation regulates the right of association for lawful purposes. The State grants the authorization for the functioning of the groups that are organized in the various areas of collective work, such as the Chambers of Commerce, workers' and employers' unions, cultural institutions and those that promote industrial and economic development, etc.
B. Trade Unions
Article 188 of the Labor Code recognizes the right of association in unions or cooperatives, which may be of employers or employees. Laborers are in turn subdivided into guild unions, enterprises, industries, or combinations of various offices according to Article 189 of the Code. Further, Article 190 determines that no one may be forced to form part of any union nor may any worker or person be forced to abstain from joining a union in the exercise of their rights of association and in the election of the board of directors of the unions to which they belong. Any interference, prohibition or duress on the part of the employers or their representatives is punishable by the law. In order that the trade unions develop in the best manner possible on a permanent basis, those that have been legally registered enjoy legal standing, with the corresponding authority and powers.4
It is, however, a fact that the Ministry of Labor has denied legal standing to various trade unions that have requested it. In this regard, the following cases, among others, were denounced to the Special Commission: tobacco industry of Estelí, Union of Peasant Workers of Villa Salvadorita, Union of Workers of the Hospital Somoza of Ocotal, and sections of the health unions of Managua, located in the Oriental, Occidental, Buena Esperanza, Fernando Vélez País Hospitals and the Roberto Clemente Clinic, and which are affiliated with the Federation of Health Workers.
On the other hand, special legal provisions have hindered the free development of organizing the Telecommunications and Mail Workers (TELCOR), the National Electricity Company (ENALUF), the Empresa Aguadora de Managua, the Pacific Railroad of Nicaragua, the National Sewerage Department, as well as the public service workers.
Furthermore, as a consequence of the state of emergency in Nicaragua, trade unions are severely restricted by means of the persecution and jailing of a great number of union organizers. Neither the protection of trade union leaders (fuero sindical) nor the Conventions of the ILO such as 87 and 98, are being enforced with respect to trade union freedom and collective contracts.
C. Political Association
The very Constitution that recognized the right to political association also restricts it, to the detriment of universally accepted ideas of ideological and political pluralism. The Constitution of 1974, in Article 316, limits the exercise of political action to the exclusive right of the two existing traditional political parties, making a distinction between the majority party and the party which receives the second greatest number of votes. According to this same provision the Supreme Electoral Court is composed of three magistrates of the majority party—which is the government party—and two from the party which obtains second place in the most recent presidential elections. Likewise, consistent with other constitutional regulations, participation in the political, administrative and judicial machinery is only granted to the governmental party, called the majority party, and to that party which obtains second place in the elections.5
The electoral law, in its Article 9, repeats this political monopoly by establishing that “citizen groups are considered as political parties when in the immediately previous presidential or municipal election they have obtained first or second place in the number of votes cast in the country.” Although the electoral legislation does establish that “it is the right of citizens to organize political parties or to take part in them,” the same legislation establishes legal obstacles for the creation and recognition of new institutions of this nature. Also Article 74 of the Constitution prohibits “the formation and activities of the Communist Party and those parties that maintain similar ideologies, as well as any other party organized on an international basis.
This situation, which limits the right to political association, has prevented new groups from obtaining legal recognition and, of course, makes the electoral system of the country more inoperative and inadequate.
The exercise of the right to vote is affected by the mistrust that the people place in the current electoral system. In effect, according to some denunciations, the electoral registration system has led to fraud; there are no effective controls to avoid such fraudulent maneuverings and, in general, the electoral system is defective. Of course, even if such deficiencies in the electoral system were to be corrected, the process would be ineffective unless the corresponding guarantees relating to the right to life, the right to the integrity of the person, to due process and other fundamental rights, were established and respected.
D. The Rights of Assembly and Association under the Present Emergency Regime
It becomes clear that if the rights of assembly and association set forth in the Nicaraguan legislation are frequently blocked in practice, the problem is aggravated and the very essence of these rights is changed even to the point of annihilating them by the prolonged period of the State of Siege in which the constitutional guarantees are suspended and by the imposition of Martial Law.
These rights are no longer operative when the constitutional guarantees referred to are suspended in their totality. This is what happened by means of the decree of September 13, 1978. The decree of October 13, 1978 prolonging the state of siege until April 30, 1979, specifically suspends throughout the country the guarantees established by Articles 39, 73 and 75 of the Constitution, referring to individual freedom; the right to assemble in public and to demonstrate; to address petitions or claims to the public powers, who are obliged to make known the result. With the nearly constant suspension of the constitutional guarantees of presenting petitions or claims, any right to seek justice to remedy arbitrary actions committed against the rights of assembly or association becomes illusory. Citizen's rights under the law of amparo and the right to habeas corpus—also suspended by that decree—are prevented from being exercised.6
The Inter-American Commission on Human Rights in its recent visit to Nicaragua was able to verify the systematic execution of arbitrary acts directly prejudicing the rights to assemble and association, committed under the discretional powers authorized by the suspension of constitutional guarantees and under Martial Law. These discretional powers have created a climate of generalized intimidation and terror. Examples of these violations, some of which occurred days before the decree of September 13th suspending constitutional guarantees, include the following:
a) The right to meet in public and the right to demonstrate is not allowed, nor the right to meet indoors, peacefully and without arms. It was argued that during the state of exception or emergency, the respective constitutional guarantee was not operative.
b) The Government of Nicaragua, by legislative decree of August 29, 1978, annulled the legal standing of the Chamber of Commerce in Nicaragua.7
c) On August 31, 1978 the Nicaragua National Institute of Development (INDE) received a communiqué from the Ministry of the Interior containing Decree 163 in which the approval of its statutes was cancelled. Three days later the National Congress cancelled the legal standing of that institution. The justification offered for the decree was that INDE had “separated itself from the objectives for which it was founded in order to involve itself in party politics, arousing intranquility in the country.”
The contents of this report clearly show the situation of the rights of assembly and association in Nicaragua today. The arbitrary action of the Government in relation to these two rights, so deeply rooted in the dignity of the human being, has been directed against the different sectors of the Nicaraguan society. As has already been said, this has particularly affected groups of different natures—political, trade-unionist and the private sector—and has had a dramatic impact on the peaceful process of living together for the people of this country and on the observance of human rights and the rule of law.
1 Article XXI of the American Declaration of the Rights and Duties of Man states: “Every person has the right to assemble peacefully with others in a formal public meeting or an informal gathering, in connection with matters of common interest of any nature.” Article XXII of the American Declaration reads: “Every person has the right to associate with others to promote, exercise and protect his legitimate interests of a political, economic, religious, social, cultural, professional, trade union or other nature.”
2 The Penal Code of Nicaragua enacted on April 1, 1974, in Article 255, on Crimes against Political Freedom, states that he who by violence, threat or tumult, hinders or paralyzes, totally or partially, the exercise of any political right, except when provided for by a special provision of the law, shall be imprisoned for a period of two weeks to fifteen months, and if the guilty party is a public officer and has committed the crime of abusing his functions, the imprisonment shall be from six to thirty months. Article 256 on Crime against Freedom of Trade, Labor and Association, in paragraph 2, establishes that he, who by himself or for someone else, exercises duress or threats in order to force another to take part in a closing, or to leave or join a legal association, shall be punished by imprisonment of three months to one year or by fine of 200 to 700 Córdovas, or both.
3 The Electoral Law was promulgated on November 15, 1974. Article 58 establishes that all political parties have the right without violating the law, to carry out any kind of electoral propaganda, which includes, among others, holding indoor meetings, but public demonstrations or meetings can only be held six months before the date of the elections.
4 The Nicaraguan Labor Code dates from January 12, 1945. On April 9, 1951 the Regulations of Trade Unions were published, which define trade unions as “associations of employers, employees, workers or peasants for their moral, economic and social improvement, for the study of their common problems and for the defense, development and protection of their professional interests.”
5 See especially Articles 127, 160, 238, 245, 291, 303, 320, 321, and 340 of the Constitution.
6 The present Law of Amparo was promulgated on October 25, 1974. Article 1 of this law establishes “the legal means to exercise this right, so that the supremacy of the Constitution and the constitutional laws are maintained and re-established.” The decree of suspension of guarantees of October 12, 1978 includes Article 42, which confirms the right of every citizen to present a writ of habeas corpus.
7 Legislative decree N° 723 of the 29th of August 1978, published in the official journal, La Gaceta, of the 30th of August 1978.