Freedom of Expression
Press Release 29/00
1. Freedom of expression in the Hemisphere is one of the principal concerns of the Inter-American Commission on Human Rights (IACHR). In response to numerous demands from broad sectors of civil society in the Americas, the IACHR created the position of Special Rapporteur for Freedom of Expression. This is a permanent position, with functional independence and its own budget, that operates within the legal framework of the Inter-American Commission on Human Rights. The Rapporteur for Freedom of Expression enjoys the support of the Heads of State and Government of the Hemisphere, who, at the Second Summit of the Americas held in Chile in April 1998, declared publicly their concern over the status of freedom of expression and welcomed the creation of the Special Rapporteur.
2. The objectives of the Special Rapporteur are, among others, to stimulate awareness of the need for full respect of the right to freedom of expression in the Hemisphere, and of its importance in consolidating and developing the democratic system; hearing complaints and protecting other human rights; and making specific recommendations to member states on matters related to freedom of expression, so that they may adopt measures to further this right.
3. Freedom of expression is fundamental for the development and consolidation of democratic processes, and it is indispensable in forming public opinion. On this point, the Inter-American Court of Human Rights has noted that "freedom of expression is fundamental for the full development of political parties, labor unions, scientific and cultural organizations, and in general all those who seek to influence the course of public affairs. It is, in the end, a precondition for ensuring that the community is sufficiently informed when the time comes to exercise its options. It may safely be said that a society that is not fully informed is not fully free".
4. Freedom of expression includes the right of any person to seek, receive and disseminate information and ideas of all kinds. In this respect, it has a dual dimension: it includes the right of every person not to be deprecated or prevented from stating his own opinion, and at the same time it includes a collective right to receive any information and to hear the expression of divergent thinking.
NATURE AND OBJECTIVES OF THE VISIT
5. Dr. Santiago A. Canton, Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, today wrapped up a five-day visit to Panama, at the invitation of the government and in follow-up to subsequent requests from various sectors of Panamanian society.
6. During the last five days, the Special Rapporteur conducted a schedule of activities and meetings that included authorities of the Panamanian State; directors of the mass media; press workers' associations; organizations of media workers and owners; independent journalists; academic institutions; representatives of human rights organizations and other bodies of civil society, with a view to making contact, gathering information and analyzing the state of freedom of expression in Panama.
7. The Special Rapporteur wishes to thank the Panamanian authorities for permitting him to conduct his work with complete independence and autonomy, and for their readiness to cooperate in seeking solutions to the problems posed and to address the specific recommendations made during the visit. The Special Rapporteur is also grateful to the many representatives of civil society, the media, and in particular the journalists who provided valuable information during his visit.
GENERAL REMARKS
8. The vast amount of information gathered during these five days will be evaluated in due course and the Special Rapporteur will be issuing a detailed report on the activities and outcome of his visit.
9. At this point, the Special Rapporteur wishes to highlight the following preliminary conclusions, observations and recommendations that emerged from his visit.
10. The President of the Republic expressed her clear willingness to promote full and complete freedom of expression in Panama and to cooperate with the Rapporteur for Freedom of Expression in any way necessary for the pursuit of this goal.
11. The Rapporteur recognizes that democratic progress in Panama has contributed significantly to strengthening the right to freedom of expression. The Rapporteur welcomes the forthcoming attitude of the President, who has demonstrated both in word and in deed her determination to put an end to existing restrictions on freedom of expression. The repeal of certain so-called gag laws in December 1999 is particularly welcome, considering that other governments have previously expressed a similar determination but have never moved to implement it. The Rapporteur is confident that the intention of the President to sustain and broaden the right to freedom of expression for all Panamanians will persist throughout her mandate.
12. As well, the Rapporteur wishes to recognize the willingness of the Legislative Assembly to pursue the reforms proposed by the President. This willingness means that Panamanian legislation can be further amended to bring it into line with the American Convention on Human Rights.
13. In his annual report for 1999, the Rapporteur recognized Panama as one of the states that had made particular progress in terms of freedom of expression, especially in light of law 55 of December 1999, sponsored by the government of President Mireya Moscoso, which involved the repeal of articles 15, 16, 17 and 19 of Law 11 and of Law 68.
14. During his stay in Panama, the Rapporteur witnessed a broad and free exchange of ideas and opinions. It is only through unrestricted debate and discussion in all the media of communication that the democratic process can be further strengthened.
15. Nevertheless, the Rapporteur also received information of situations where freedom of expression was restricted. These are a source of concern to the Rapporteur, and must be investigated and resolved promptly by the authorities. These restrictions are described below.
LEGAL FRAMEWORK
16. Despite the legal reforms introduced by the current government, there still exists a set of anachronistic legislation limiting the effective exercise of the right to freedom of expression. This legislation is used by certain public officials to silence criticism of their conduct.
17. There are a series of provisions enshrined in the so-called "Contempt Laws" [Leyes de Desacato] which, by penalizing the expression of opinions offensive to public officials, infringe upon freedom of expression and the right to information recognized in article 13 of the American Convention on Human Rights and other international instruments.
18. In this respect, the Inter-American Commission on Human Rights has determined that laws protecting the honor of public officials acting in their official capacity give them an unjustified right to protection that is not extended to other members of society. This distinction directly contravenes the basic principle of any democratic system, under which government is subject to controls, including public scrutiny, in order to prevent the abuse of its coercive powers. If it is accepted that public officials acting in the course of their official duties are, for all purposes, the government, then it is the right and duty of individuals and society to criticize and scrutinize the actions and attitudes of these officials as they relate to public service.
19. The Rapporteur noted in his annual report of 1999 that the right to freedom of expression and information is one of the principal mechanisms available to society for exercising democratic control over persons in charge of furthering the public interest. Consequently, when restrictions are placed on the freedom of expression and information, this limits the ability of the citizenry to maintain surveillance over public officials, and transforms democracy into a system where authoritarianism can find fertile ground for imposing itself on the public will.
20. The Rapporteur found that the concept of "contempt" exists in various legal provisions. Without attempting an exhaustive analysis, and in light of the information received, the Rapporteur considers that the following rules enshrine the crime of contempt and are therefore incompatible with the American Convention on Human Rights: Art. 33 of the Political Constitution of Panama; Articles 202 and 386 of the Judicial Code; Art. 827 of the Administrative Code on Correctional Penalties; Article 45 of the Administrative Code on Municipal Administration and Articles 307 and 308 of the Criminal Code. In this respect, the Rapporteur supports the draft law to repeal contempt legislation, as prepared by the Public Defender of Panama.
21. The Rapporteur also noted several instances where public officials and public or private individuals involved voluntarily in public affairs have brought criminal proceedings against social communicators for libel [injurias y calumnias]. The Rapporteur and the Inter-American Commission on Human Rights have expressed their concern over the use of such proceedings as a mechanism for limiting the freedom of expression.
22. The Inter-American Commission on Human Rights has indicated that in cases alleging libel against public officials, public or private individuals involved voluntarily in public affairs, civil action should be sufficient, and it has declared that: "the obligation of the state to protect the rights of others requires statutory protection against intentional attacks on honor and reputation, through civil action and the adoption of laws guaranteeing the right of rectification or reply. In this respect the state guarantees protection for the private life of all individuals without making abusive use of its coercive powers to suppress the individual's freedom to form and express opinions."
23. According to the information received, the use of such charges (libel and contempt) has on occasion resulted in the persecution, harassment or imprisonment of certain individuals for expressing their opinions. This practice is of great concern to the Rapporteur, since no person should be deprived of his liberty for exercising his right to freedom of expression in relation to public officials.
24. The Rapporteur has received information on certain cases initiated by the National Attorney General and other officials against social communicators. These practices represent a clear limitation on the freedom of expression. The Rapporteur had the opportunity to meet with the Attorney General and to express his concern in this regard. The Rapporteur is confident that the Attorney General will find other legal mechanisms for fulfilling his duties, without violating the provisions of the American Convention on Human Rights.
25. The Rapporteur has received information concerning the existence of Cabinet Decree 251 of 1969 creating the National Board of Censors and District Boards for the Control of Public Entertainment, Films, Television, Publications and Broadcasts. No comments were received to indicate any serious concern over the misuse of this decree. Nevertheless, the Rapporteur considers that these rules could be used against freedom of expression and could even constitute a mechanism for prior censorship, which is expressly prohibited in article 13 of the American Convention.
26. Many individuals have expressed their concern over recent draft legislation that seeks to incorporate legal precepts that were recently repealed because they were incompatible with freedom of expression. The Rapporteur notes that any law must conform to the American Convention on Human Rights.
27. In accordance with article 2 of the American Convention on Human Rights, the Panamanian state has the obligation to adopt all legislative or other provisions necessary, if they do not already exist, to guarantee and give effect to the rights established in the American Convention. Every state has the legal duty to take the necessary measures to fulfill its obligations under the treaty, whether such measures are of a legislative or another nature.
ACCESS TO INFORMATION AND HABEAS DATA
28. The Rapporteur recommended to the authorities that legislation be promulgated to guarantee effective respect for the right to freedom of information and habeas data. The Rapporteur welcomes the government's intention to regulate habeas data actions, and is confident that this resolve will extend to regulating the right of access to information in the possession of the state. Both of these aspects are fundamental for strengthening democratic society and ensuring complete liberty of expression and information.
29. On this point, the Rapporteur wishes to express the following:
30. The right of access to information held by the state is one of the fundamental aspects of representative democracy. In a representative system, officials are responsible to the citizenry, who have entrusted them with the power to represent them and to decide on matters of public interest. The owner of information is the individual who has delegated his representatives to manage public affairs. Moreover, the information that the state uses and produces is obtained with funds provided by the citizens through the taxes they pay.
31. Procedures that guarantee access to information held by the state are a means of controlling the management of public affairs and are one of the most effective mechanisms for combating corruption. The absence of effective control "implies an attitude that is at odds with the essence of the democratic state, and leaves the door open to unacceptable transgressions and abuses". Guaranteed access to information held by the state will enhance the transparency of government acts and consequently reduce corruption in state management.
32. It is important to note as well that, although the right of access to information held by the state is a fundamental right of individuals, its exercise is not absolute. Thus, article 13.2 of the American Convention provides for certain restrictions. The general principle of public access to information held by the state allows limitations when there is an interest that requires restrictions on such information. These restrictions must be limited and expressly established by law.
33. An important aspect of the right to information is the procedure for habeas data. This guarantees any person access to information on himself or his property contained in public or private databases or files and the right to update or correct such information as necessary. The procedure is becoming even more important with the advance of new technologies. With expanded use of computers and the Internet, the state and the private sector alike have at their immediate disposal a vast quantity of information on individuals. At the same time, the volume and speed of communications makes it all the more necessary to have concrete channels for prompt access to information, so that electronically stored data can be updated or corrected.
34. In addition to recognizing the right of access to information held by the state, and providing for habeas data, there must be a prompt and effective procedure to ensure that these rights can be exercised fully. Administrative red tape that in many states impedes access to information must be eliminated, and simple and low-cost systems must be introduced for submitting applications for information. To do otherwise would be to enshrine formally a procedure that in practice does nothing to facilitate access to information.
35. In the course of this provisional analysis of freedom of expression in Panama, the Rapporteur cannot fail to point out that the poverty and social exclusion in which broad sectors of the population live have a direct effect on the freedom of expression by suppressing the voices of these people, who have little access to wide-ranging discussion of ideas and opinions and are limited in their ability to obtain the information needed to achieve equitable development within a democratic society.
36. Similarly, discrimination against women and indigenous people represents an attack on freedom of expression, and their exclusion from public forums of debate means that society is deprived of the chance to hear from the majority of the population. The individual's freedom of expression finds in the mass media and in active political participation a mechanism for seeking solutions, within a democratic context, to the sharp inequalities in which many sectors of the population now live.
37. During his visit, the Rapporteur was occasionally told of a tendency to monopoly in the ownership of television channels. While the Rapporteur does not feel that this practice poses a serious problem in Panama currently, he wishes to note that the existence of monopoly practices in the communications media, both in the area of television and that of radio or the printed press, is incompatible with free exercise of the right to freedom of expression in a democratic society. It is the duty of states to ensure equality of opportunity in the granting of licenses for radio and television frequencies. In this respect, the Inter-American Court has ruled: "the social communications media serve to materialize the exercise of freedom of expression, so that the conditions under which they operate must be consistent with the requirements of that freedom. It is therefore indispensable to have a variety of media sources, to prohibit any monopoly with respect to them, in whatever form it may take, and to guarantee protection of the freedom and independence of journalists".
38. The Rapporteur also wishes to express to owners of the communications media the importance of adopting policies to improve the situation of social communicators. These people are the first and primary link in the communications chain. Inadequate working conditions are an impediment to their functions, and this will have a negative impact on the right to information of all Panamanians citizens. The communications media should establish training programs for social communicators. During his visit, the Rapporteur was told on several occasions of the difficult situation in which workers in the communications media find themselves
39. Several people complained of what they called the "excessive or abusive exercise of freedom of expression". The Rapporteur received information of cases in which the communications media were used as instruments to promote personal or economic interests or to impugn the honor of certain individuals, in disregard for the truth and in defiance of the right of the Panamanian people to be informed. These accusations deserve to be taken seriously, and Rapporteur wishes to remind everyone connected with the communications media that credibility implies a commitment to truth, impartiality and fairness. When interests in conflict with the truth have an undue influence on information, all of society is harmed and the stability of the democratic system is placed in peril.
40. The Rapporteur remains at the disposal of the Panamanian authorities and of civil society and is prepared to work together with them to promote and disseminate the right to freedom of expression.
41. Finally, the Rapporteur, in the spirit of cooperation expressed by the authorities, wishes to make the following preliminary recommendations:
1. That the government give effect as soon as possible to its commitment to repeal all legislation enshrining the crime of contempt.
2. That legislation on libel against public officials, and public or private persons involved voluntarily in public affairs, be revised in order gradually to remove these matters from the purview of criminal law.
3. That they consider adopting legislation on access to information held by the state.
4. That they consider adopting legislation regulating habeas data proceedings.
5. That they consider revising and as appropriate repealing Cabinet Decree No. 251 of 1969.
6. That they conduct campaigns for the promotion and protection of the right to freedom of expression.
The Special Rapporteur for Freedom of Expression will continue to observe and report on the status of freedom of expression in Panama and will cooperate in seeking mechanisms to ensure full effectiveness for this right, in accordance with international
standards.
Santiago A. Canton
Special Rapporteur for Freedom of Expression
Panama City, July 14, 2000