CHAPTER FIVE

RIGHT TO FREEDOM OF INVESTIGATION, OPINION, EXPRESSION AND DISSEMINATION

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

1. Article 36 of the Panamanian constitution established the right to freedom of expression: "Every person may freely express his opinion orally, in writing or by any other means, without subjection to prior censorship. However, legal liability shall be incurred when by any of these means the reputation or honor of persons is assailed or when social security or public order is attacked."

2. Cabinet Decree No. 342, 31 October 1969 (Gaceta Oficial, No. 16.480) which was in effect until just after the visit of the IACHR, limited the right to freedom of investigation, opinion, expression and dissemination, in the name of public order. Various types of expression, set out previously in Chapter Four, were considered a crime of subversion of public order under Article 3 of this decree.

3. Cabinet Decree No. 343, 31 October 1969 (Gaceta Oficial, No. 16.480, 5 November 1969), which was in effect until February 14, 1978, regulated the freedom of expression by establishing the obligation of owners of printing presses, radio and television stations, and newspapers to register their businesses with the proper authorities, to provide copies of any printed material to the government on the same day of the printing, and to keep, for one year, the signed originals of printed material, and recordings or transcripts of radio and television programs. (Article 4) Article One, however, declared that "the expression of opinions and in general public transmission of thoughts, either in writing or by any other means is not subject to prior censorship."

Decree 343 defined calumny, insults and the spreading of false or unauthorized information and provided for fines, indemnization, civil actions and criminal actions leading to sentences of six months for insults, and three to six months for publishing false or unauthorized information. On its face, this decree constituted an interference with freedom of expression and it contained several aspects that, because of broad and ambiguous language, aggravated its effect:

a) the establishment of prison sentences for acts that normally give rise only to civil actions;

b) findings of guilt and sentencing in these cases were by an administrative decree, rather than by judicial proceedings; (Article 35)

c) the authors of any such information, as well as the directors, editors, or owners of the means o communication by which it is published, were liable for prison sentences;

d) insults published in foreign newspapers or transmitted by foreign radio or television stations were considered as having taken place on Panamanian soil if the newspaper circulated in Panama or the transmission was received in Panama; (Article 25)

e) those were liable who from the territory of Panama sent any calumnious or insulting material, or gave orders for its publication or transmission, or contributed to the reception or divulgation in Panama of those newspapers or transmissions by which the punishable act was committed. (Article 25)

4. A number of complaints have alleged the violation of the rights to freedom of investigation, opinion, expression and dissemination. One of them noted that the Government had closed down and confiscated the following radio stations: "Ondas Istmeñas," [1968] "La Voz de Colón," [1975] and "Radio Impacto" [1976]. With regard to the newspapers, it was said that the Government exerts great pressure over the privately owned ones.

A political group declared that freedom of the press is severely restricted by the fact that three of the newspapers printed in Panama are published by Editora Renovación, whose principal stockholder is said to be a close adviser of General Torrijos, and a fourth, the Estrella de Panamá, is closely connected to the Government:

Aside from these considerations, here in Panama, until just before the signing of the treaties there was not even a little freedom of the press. After the signing we can point out that freedom of expression is given to us with an eye-dropper. We have taken various announcements to different newspapers, the majority has never been published and in the best cases any announcement or writing is subject to prior censorship by the G-2 of the National Guard. The same things happen with radio journalism . . . l. In view of the facts that serve as evidence we can declare that in the country there is no freedom of expression.

5. The Press: Individual Cases

a. "Quiubo"

A communication addressed to the IACHR made the following allegation with regard to the closing of "Quiubo":

A well-known Panamanian newsman, Ramón Jiménez, was detained and held incommunicado for several hours . . . apparently for trying to start a newspaper.

Jiménez, according to his brother and partner in the newspaper venture, Alfredo, was taken from the printing plant by four plain-clothesmen in an official car at about 11 a.m. Wednesday. [January 16, 1974]

The two brothers had planned to begin publishing today a daily magazine-sized newspaper called "Quiubo (What's Up) with an initial circulation of 5,000 copies . . .

However, when word of the project reached the government, Jiménez was threatened with deportation if he persevered with it . . . .

Summoned to the ministry, Jiménez was told by Minister of Government and Justice Juan Materno Vásquez that the government believed the paper would be an opposition organ, financed by the National Council of Private Enterprise (CONEP), . . .

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Jiménez also was told by the chief of the National Guard's G-2 (Intelligence) department, Lt. Col. Manuel A. Noriega, that the general staff had decided to prohibit the publication and that persisting could lead to exile.

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Following Jiménez arrest Wednesday, the National Guard raided the printing plant during the lunch hour, carrying off business papers, check books and syndicated material obtained in advance for the newspaper.

Jiménez said he agreed to cancel "Quiubo" to protect 20 employees and his family from any physical danger. He said that insinuations that his family could be in danger were made during his detention.

He said the order against "Quiubo" demonstrated that there is no freedom of the press in Panama.

In answer to the request of the IACHR for a report on the closure or prohibition of the newspaper "Quiubo", including details of the circumstances and the legal basis for the action taken, the government of Panama supplied only a document it described as follows:

On the so-called newspaper QUIUBO, whose alleged appearance is indicated as 1974, a photocopy of the writ of habeas corpus presented by Licentiate Salvador Muñoz in behalf of Licentiate Ramón Jiménez V. and against the Minister of Government and Justice, Doctor Juan Materno Vásquez and photocopy of the decision of the Honorable Supreme Court of Justice.

b. "La Opinión Pública"

According to information supplied by the Government of Panama, it was notified by Tomás H. Herrera D. of the proposed publication of a newspaper entitled "La Opinión Pública," and it decided by Resolution No. 009, 6 March 1975, signed by the Minister of Government, to block that publication because the owner, Center of national Studies, S.A. (Centro de Estudios Nacionales) "has not shown its legal existence."

At the request of the Minister of Government, who alleged a violation of Cabinet Decree 343, Article 3(2), the Minister of Commerce and Industry then cancelled the license of "Editorial Verdad, S.A.," owned by Ramón and Alfredo Jiménez, who had agreed to print the newspaper.

Government officials allegedly confiscated the editorial material for the first edition which reportedly contained articles critical of the government's attitude in the Panama Canal treaty negotiations and of new import duties.

6. The Press: Editora Renovación

Communications addressed to the IACHR maintain that the Government of Panama interferes with the right to freedom of expression through its control over Editora Renovación, which publishes Matutino, Crítica, La República and Dominical.

Editora Renovación was founded for the purpose of purchasing the newspapers previously published by the Arias family under the name Editora El Panamá América: El Panamá, The Panama American, Crítica, and Expreso. It was alleged that the current government devised a means of taking control without expropriation. First, a minority shareholder brought a suit against the company, alleging mismanagement and failure to pay dividends. Then, the Court ordered a judicial sale at the assessed valuation rather than the market price, and the Government arranged for persons of its confidence to make the purchase, as sole bidder, with a loan from the National Bank of Panama.

Allegation that Editora Renovación is government-controlled are based upon its editorial policy and the relationship between the founding officers of the corporation and the government. The Commission found in the Editora Renovación newspapers, a uniform expression of the Government's position, an absence of other points of view, and a tendency to manipulate news reports and newspaper columns with a view toward intimidating and denigrating persons considered as opponents of the government. Members of the opposition have been falsely portrayed in these papers as common criminals and homosexuals, and false information has been published for the apparent purpose of provoking dissention among opposition groups.

7. The Radio

Communications alleging violations of the right to freedom of expression point to the following incidents as examples of the suppr5ession of independent radio commentary:

a. Radio Impacto

As a result of his interest in the disappearance of Father Gallego, the manager of Radio Impacto, Alberto Quirós Guardia, was allegedly threatened by a plainclothes member of G-2 in early September of 1971. When returning home from a midnight mass marking the disappearance of Father Gallego, his car was forced to the side of the road by another vehicle. "His tape recorder was seized at gunpoint and smashed by a plainclothes member of G-2 who threatened Quirós Guardia with jail." "His wife's screams brought three uniformed National Guardsmen to the scene who dissuaded the agent."

On December 3, 1971, Radio Impacto was suspended for 90 days for having violated "Article 1 of Cabinet Decree no. 107, 22 April 1971, which modifies Article 28 of Cabinet Decree No. 343." (Ministry of Government and Justice, Resolution 610, 3 December 1971)

In august of 1973, Radio Impacto was threatened by the Minister of Government with stiff action if it continued to be "irresponsible." Radio RBC received the same threat. It was alleged that these threats were a response to coverage of the student strikes in Chiriquí against Communist influence.

In May of 1975, Radio Impacto was attacked by the pro-Government Federation of Panamanian Students (FEP) after it had spoken out in favor of the position of the rival student group, the Revolutionary Students Federation (FER). Allegedly instigated and accompanied by members of G-2, the students showered the station with stones, painted it, and insulted those inside it.

Radio Impacto requested Government protection but no protection was provided. In response to the attack, the Circle of Independent radio Journalists, sent a protest to the Minister of Government on May 25:

The authorities of the Republic are instituted and constituted to protect the life, honor and property of those associated, Constitutional precept Article 17, to fail to recognize it is to laugh at the Constitution in effect, we condemn and repudiate uncivilized actions against the radio station Radio Impacto and its workers. . . .

On January 20, 1976, Alberto Quirós Guardia was arrested and sent into exile. The radio was closed and the employees arrested on the same day.

Its license to operate was cancelled on February 12, 1976, by Resolution 47 of the Ministry of Government and Justice, which claimed that: 1) the station had been spreading false information, in violation of Cabinet Decree 343, 2) it had waged a permanent campaign of subversion by means of false and misleading news and commentaries in violation of Decree 342, and 3) it had not complied with the record-keeping requirements of Decree 343. Finally, it said that the station needed repairs and modifications for the safety of its personnel.

b. Official Guidelines for Radio and TV

Shortly after the attack on Radio Impacto, on Ma 27, 1975, the Government called a meeting of the representatives of radio and television stations for the purpose of suggesting guidelines which some have seen as the imposition of prior censorship. Those guidelines were embodied in an official communique of César Rodríguez M., Minister of Government and Justice, dated may 29, 1975:

The Ministry of Government and Justice, conscious of its responsibility in maintaining the greatest degree of prudence, serenity and tranquility in the nation through the communications media, calls to the attention of the holders of radio frequencies and radio journalists who make use of them of the need not to be hasty or create alarm with news related to student and education matters, to the negotiations with the United States of America and to public services. Consequently, when you desire to make references to the above-mentioned subjects, we exhort you to consult with the competent authorities.

8. Suppression of the Freedom of Expression of Individuals and Groups

Communications received and on-site interviews give to understand that many individuals and groups do not feel free to express their opinions in Panama. The IACHR has been informed in many cases that people and organizations are intimidated by governmental actions such as arrests, threats, and the exiling of members of the opposition.

There seems to be general agreement in Panama that more freedom of expression has been permitted in recent months because of the treaty negotiations, the plebiscite, and visits of foreign congressmen and international organizations. However, most of those who expressed an opinion fear that as soon as the ratification of the U.S. is obtained or the treaty situation becomes otherwise defined, the situation will revert to "normal". Those who hold such fears point to actions taken against newspapers and the communications media, as well as a history of actions against individuals and groups, some of which are summarized in the paragraphs that follows.

a. Movement of Independent Lawyers (Movimiento de Abogados Independientes)

A civic organization made the following complaint:

The Movement of Independent Lawyers published an informative Bulleting and for this reason its Directors were threatened with the application of a Press Decree whereby this publication was considered a crime. Subsequently, and due to the fact that these threats went unheeded, three of the directors of that Movement were expatriated.

b. Winston Robles

Winston Robles, a Professor of Law at the University of Panama, who was sent into exile in 1976, spoke out at the university against the interference of the National Guard in the system of justice in 1974-75. "At that time," he relates in a published document, "I was harassed by intimidating telephone calls, threatening me with expatriation." "I was labeled a 'protector' of drug consumers by the government press."

c. Florencio Enrique Delgado

Florencio Enrique Delgado, a business executive, was arrested by G-2 on June 14, 1975, after a member of the National Guard reported a private conversation in which Delgado criticized the government's economic policies, the ineptness of some of its ministers, and the influence of communism. He was held for 3 days by G-2 and was then turned over to the Attorney General's office and finally to the Ministry of Government and Justice, which charged him with "attempting to join a group to undermine the security of the current government and with offending the dignity of the Ministers of State." Arrest and questioning of some of his friends and associates showed that he had expressed similar ideas in conversations with them and had shown several of them a copy of an open letter entitled "Alert Panamanians!" which he was considering making public. Delgado was released from the Model Jail (Cárcel Modelo) on July 7.

d. Women's Patriotic Union (Unión Patriótica Femenina)

The Unión Patriótica Femenina, an organization of professional women and housewives, is another group whose right to freedom of expression and opinion has allegedly been interfered with by the Government. This group told the Special Commission that it sponsors talks and seminars on a variety of topics, including current events and the rights and duties of citizens.

Three of its members, Fulvia Morales, Blanca de Marchosky, and Alma Robles de Santos were arrested and interrogated by G-2 on September 15, 1976 shortly after leaving a meeting in the Canal zone. (See Chapter III, p.42). They were released two days later. One left the country with her husband, and a fourth member of the organization, Querube de Carles (the wife of exile Rubén Carles Jr.), left when she was allegedly informed that she should abandon the country or her friends would be subject to torture and others would be arrested.

e. Businessman (name withheld)

More recently, in the latter part of 1977, a Panamanian businessman interviewed by the IACHR, reported that he was warned by government officials to keep away from politics or his business would be affected by actions taken by the National Bank.

9. The Repeal of Decree 343

In a Note of May 2, 1978, the Panamanian Mission to the O.A.S. informed the IACHR that Cabinet Decree 343, of October 31, 1969, had been repealed by Law No. 7, of February 10, 1978 (Gaceta Oficial, No. 18516, 14 February 1978).

Decree 343 was replaced by Law No. 8 of February 10, 1978 (Gaceta Oficial, No. 18516, 14 February 1978), which could represent a significant improvement insofar as the protection of the right to freedom of expression. The chapter on crimes against public order, which provided for imprisonment and fines in the case of the publication of false or unauthorized information has been eliminated in the new law. The definitions of calumny and insult are simplified, and if interpreted by an independent judiciary, should provide sufficient protection. And finally, the finding of guilt by administrative decree has been replaced by judicial proceedings in the case of complaints initiated by the state.

Notes_____________________

1 American Convention on Human Rights

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 illegal 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.