RIGHT TO FREEDOM OF THOUGHT AND EXPRESSION1
The Constitution of Panama states in its Article 37:
Every person may freely express his opinion verbally, 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.
The Commission has received reports of violations of the right of freedom of thought and expression by the Panamanian authorities, and of persecution, detention, and in some cases, the exile of independent and opposition journalists, and the pertinent information in this connection. It has also had an opportunity to make its own on-site observations.
“La Prensa,” “El Siglo,” and “Extra,” daily newspapers, “Quiubo,” a weekly newspaper, Channel 5 Television, and “Mundial” and “K.W”. Continente,” radio stations, are now closed. Channel 4 Television and R.P.C. Radiobroadcast were audited as a result of recent proceedings initiated by the government authorities for alleged tax evasion, and ordered by the auditor to suspend news programs that maintain an independent position vis-à-vis government policy.
The harassment of the opposition and independent media escalated following their reporting of statements by Colonel Roberto Diaz Herrera in June 1987 in which they called for a clarification. At that time, some were mobilizing the citizenry to hold acts of peaceful protest so that those reports might be investigated and the guilty parties punished.
Some of the methods of repression reportedly frequently used by the Government, and particularly since that time, are censorship, closures, searches, physical occupation of premises and their destruction, harassment and arrest of distributors, suspension and cancellation of broadcast permits, etc.
Complex legal revisions and interpretations of concepts, such as “internal image of the State, national security and public policy,” and restrictions on the concept of “no prior censorship” have been used to carry on the reported violations.
The reporting of “false and unauthorized news” was just one of the prohibitions included in Law 11 enacted in 1978. Because it legalizes prior censorship, it was held to be unconstitutional. Interestingly enough, however, that prohibition appeared in Decree 343 of 1969, which was revoked in 1978 and replaced by law 8, also of 1978, where the prohibition is restricted to the reporting of “libel and slander.” But, at the same time, the grounds of falsehood and non-authorization are re-introduced through another law, law 11 of 1978.
With the lifting of the state of emergency on July 24, 1987, Executive Order 61-87 was issued, instituting as new grounds for cancellation of broadcast permits incitement, through any media, “to the disruption of public policy, the commission of offenses, or disobedience of the Constitution or of the laws of the Republic and the obligations it imposes, and the replacement of State bodies by violent means, and disobedience of the constituted laws and authorities.” Because this restriction is so vague and tenuous from a legal standpoint, the media decided to impose voluntary censorship and Channel 4 Television suspended its news programs for several months.
On that same date, by means of Executive Order 61-A/87, the television stations were made subject to those same grounds for restriction or cancellation of their permits, as to those applied to the radio stations, through Executive Order 255.
Later, on March 11, 1988, Executive Order 21, which amended Executive Order 155 of 1962, established the obligation to bring the radio stations into the government network when the Ministry of Government and Justice so announced.
Finally, Executive Order 66 of September 22 regulated Law 11 of 1978 on Regulation of the Mass Media; in fact this amounted to the barring from publication of new newspapers not affiliated with the Government, as is the case of “Hoy.”
In the case of Channel 5 Television, owned by deposed President Eric Arturo del Valle, information indicates that it was closed on February 25, 1988, without court order, an omission which the Minister in charge of the Presidency tried to make up for the following day through Resolution 94 charging him with “unauthorized conveyance;” in fact, what had happened was that in 1981, seven years earlier, he had mortgaged equipment with a government lending agency, National Financial Corporation (Corporación Financiera Nacional - COFINA), which is legal under law 86 of 1980 governing television stations. Executive Order 61-A, which followed that Resolution, was an attempt to guarantee it retroactively, although in the eyes of this Commission, whether it is enforceable is subject to debate.
With regard to the radio stations, on June 11, 1987, Radio “K.W. Continente” was ordered to close because of an alleged infraction of Law 11. Radio “K.W. Continente” had been reporting statements made by Colonel Díaz Herrera and calling publicity on the Government to fully clarify the facts. On July 27, 1987, radio “Mundial” was closed for the same reasons. These closures continued in effect until January 1988 when the Government announced an amnesty and authorized them to reopen. However, a few days later, on February 5, 1988, the Ministry of Government and Justice again prohibited Radio “K.W. Continents” from going on the air, alleging an infraction of Law 11. Later, on February 15, 1988, Radio “Mundial” was shut down again. Subsequently, in October 1988, the Government closed Radio “Exitosa” and on November 15 that same year ordered Radio “Noticias” to shut down operations. To date, only Radio “Exitosa” has been allowed to re-open.
As for the newspaper “La Prensa,” a series of methods have been employed to silence it.
For example, on July 26, 1987, the Governor of the Province of Panama issued Resolution No. 16 stating that “in recent weeks, La Prensa has published news reports in all its editions, in clear violation of Article Nº 903 of the Code of Administrative Law, and it is therefore the duty of the police authorities to prevent this type of publication from circulating, based on that legal provision. He issued instructions to prevent circulation of the newspaper and to remove papers from “La Prensa” from Monday, July 27, 1987, because it contained material inciting to the disruption of public policy, disobedience of the Political Constitution, the laws, and legally constituted authorities. He further instructed the Defense Forces to remain in the printing shop “to prevent circulation, of this type of newsprint.”
As a result of this resolution members of the Defense Forces forcibly entered the premises of the newspaper “La Prensa,” ordered the employees to vacate the building and prohibited all employees from entering.
Subsequently, the same Governor of the Province of Panama explained that the closing of “La Prensa” was not on his orders but for the sole purpose of conducting a criminal investigation for alleged offenses stipulated and clearly defined in the Criminal Code. These media were closed temporarily for preliminary proceedings in the various departments of the District Attorney's Office.
However, shortly thereafter, on July 27, the Fourth Circuit Division of the District Attorney’s Office ordered an investigation to determine whether or not “La Prensa” and “Quiubo” publications had violated Article 306 of the Code of. Criminal Law, which states that: “any public platform, or the press, radio, television, or any other means of publicity inciting to rebellion, sedition or uprising shall be punishable with six months to two years in prison and 20 to 100 days-fine.” Later, the District Attorney’s Office ordered La Prensa’s premises searched and any documents that might prove the existence of the alleged crime confiscated.
The owners of the newspaper filed several appeals with the Supreme Court, one of which sought protection of their constitutional guarantees. All their appeals were turned down, and circulation of the newspaper started only six months later, in January of 1988, on government authorization. Notwithstanding, in February of 1988, the District Attorney’s Office in Panama City again ordered “La Prensa” as well as “El Siglo” and “Extra” to close and their buildings searched.
The buildings of “La Prensa,” “El Siglo,” and “Extra” are now under an alleged legal investigation, this time supposedly for an infraction of the State Security Law. Their buildings have been occupied by the military, and it is impossible to gain entry to them, and therefore, the Commission notes it is impossible to verify this situation legally.
The reports concerning this right include cases of the arrests and forced exile of Journalists for anti-governmental proselytizing activities. Such is the case of Alfredo Jiménez Vélez, former news editor of “La Prensa” who was arrested, along with his two children and two secretaries, for printing flyers of Christian Democracy. The main office of the Press Workers Coordinator was forcibly entered and the press seized. Here, the charge by the Government was that he did not have a press permit and that he was printing subversive material. That journalist had to leave the country.
Other reports received concern the harassment and victimization of Mayín Correa, political commentator, whose arrest was ordered for alleged libel. She was forced to go into exile in February of 1988; and there is the case of Homero Londoño, correspondent for “Impacto” of Costa Rica, who decided to go into exile with his family, after being arrested and apparently tortured.
The Commission has also received reports of violations of the right of the journalists’ freedom to form an association, as is the case of the National Journalists’ Professional Association, which was denied legal status because some of its organizers were on the opposition side; nonetheless the National Union of Women Journalists and the National Union of Journalists, which tend to be pro-government, were given that legal status. The grounds for the denial were set out in Executive Order 26 of 1988 which restricts the freedom of association, guaranteed in the American Convention and the Panamanian Constitution. An indication of the selectivity of this Order is that shortly after being issued, two others were issued, Nos. 28 and 71, qualifying that Order, and excluding public servants and religious associations from the scope of that Order.
A special case concerning which this Commission has received repeated reports from various bodies is that of the Chairman of the National Professional Journalists’ Association, Alberto Conte Magdaleno. In exile today, he was an outstanding journalist in Panama, advertising entrepreneur, and leader of various associations, including the Christian Democrat Party. He was arrested on several occasions, and often without any previous warrant for arrest, and reports claim that he was physically abused and tortured and was freed after extended periods of confinement, by amnesty or by de facto expulsion from his country. Those reports further claim that his assets were seized or destroyed.
The Commission has received a reply from the Government of Panama in which it states, in relation to one of Mr. Conte’s arrests and the confiscation of his equipment, that the offices he owned “were being used as a base for the editing and publishing of material calling for the disruption of public policy, aimed primarily at attacking the stability of the legally constituted powers.” The same report indicates that by virtue of a judgment handed down on September 27, 1988, the Supreme Court of Justice declared that arrest order to be legal.
Also of concern to the Commission is the suspension of the right of expression and of freedom of information, which implies the prohibition applied to the political parties to produce and distribute their news bulletins. After continuous harassment to prevent them from being distributed, by note of the National Media Director of the Ministry of Justice on August 25, 1989, the public authorities were instructed to confiscate irrevocably those daily bulletins as well as the equipment used for their production. These daily publications, such as El Arnulfista, El Pica Gallo and La Estrella Verde (bulletins of the opposition parties)had gained wide distribution, with up to 20,000 copies being distributed to supporters of the respective parties, in some cases. The note also orders the arrest of those responsible for their publication and sale.
In its observations the Government indicates that:
In referring to the “informative bulletins of the political parties,” it should be noted that Article 99, Nº 12 of the Electoral Code provides that lawfully registered political parties 'shall be free to distribute their doctrines and programs and to conduct activities relating to their organization and strengthening.’ Nevertheless, the political parties published bulletins in place of disseminating their partisan philosophies dedicated to competing disloyally with legally established newspapers and magazines as if they were in compliance with the laws required for such publications.
After indicating that they also incited the public to “subversion of public order and the overthrow of the legally established government,” he Government observes that the political parties lack a commercial license and were selling their publications as if they were newspapers without complying with the applicable tax laws.
The Commission recalls that the American Convention on Human Rights provides that “freedom of expression may not be restricted by indirect ways or means aimed at impeding the communication and circulation of ideas and opinions.” (Article 13.3).
From the above background, one can rightfully conclude that the freedom of expression and information recognized in Panama’s Political Constitution cannot be exercised by Panamanians and their institutions.
The gamut of restrictive mechanisms goes from the use of the armed and police forces, in an unlawful and violent manner, attempts upon the lives and freedom, physical safety, property, rights of association and assembly of newsmen and media executives, the capricious application of legal regulations and the creation of new ad hoc regulatory instruments restricting them, to the lack of a positive response from the Judiciary to repeated requests for constitutional guarantees of protection submitted by injured parties and institutions concerned.
1. Article 13 of the American Convention on Human Rights states: Freedom of Thought and Expression. 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 entertainment may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescents. 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.