CHAPTER VII
FREEDOM OF THOUGHT AND EXPRESSION1
A. General considerations
1. As indicated in Chapter I of this report, the Constitution of the Republic establishes that thought may be freely expressed without prior censorship and that any person who abuses this right by acting with a disregard for private life or morality shall be held responsible before the law. Moreover, the Constitution prescribes that “no person may be persecuted or molested for his opinions or for his acts which do not involve an infraction of the law.”2
2. Regulations governing freedom of thought and expression are contained in the law on Expression of Thought, in Decree Nº 9 of the Constituent Assembly, promulgated on April 28, 1966, on the basis of the pertinent constitutional provisions. This legal code provides that “thoughts may be freely expressed in any form, and in no case may bond or surety be required for the exercise of this right, nor may it be subject to prior censorship.” Printed matters is classified into books, booklets, newspapers, leaflets, and title pages. Freedom of information is characterized as unrestricted, with the statement that journalists shall have access to all sources of information.3
In accordance with the legal code, publications shall be represented before the courts of justice and administrative authorities by the director, the editor in chief, or the legal representative of the particular publication, through acts originating in the law. Publishing houses and radio and television stations shall enjoy the benefits of the Industrial Development Law, provided that they comply with the requirements established by that law.4
The Law on Expression of Thought provides that no one may be persecuted or molested for his opinions, but anyone who acts with a disregard for private life or morality or who commits a legally-punishable crime or misdemeanor, shall be held responsible before the law. It is provided in this respect that a jury trial and punishment may result when publications abuse freedom of expression of thought in the following cases: a. when they imply treachery to the fatherland; b. when considered subversive under the law; c. when damaging to moral principles; d. when failing to respect private lives; and e. when slanderous or severely damaging.5
Attacks on public officials or employees for purely official acts carried out in the exercise of their positions, are not crimes of slander or damage under the law, even if the persons concerned have already left these positions at the time that a charge is made against them. Newspapers are obliged to publish clarifications, corrections, explanations, or refutations sent to them by any individual or juridical person to whom they inexactly attribute acts, whom they accuse, or in any other way directly and personally make reference. Crimes and misdemeanors in the expression of thought through the media shall be judged exclusively by a jury, which shall declare in each case, to the best of its knowledge and belief, whether or not the act is a crime or misdemeanor. When any person considers himself damaged by the content of a publication or issue, he shall present a document to the judge of the first instance of the domicile of the party presumed responsible for the publication and bring suit against that party. The document must meet certain requirements. When the verdict is for acquittal, the judge must dismiss the case during that proceeding and notify the interested parties; and if the verdict is for conviction, the judge must impose the appropriate punishment in that same court. The decision may be appealed within 48 hours after it is issued, and the condemned may be released from jail under bail or promissory bond at the decision of the judge. The decision of the Court of Appeals on the appeal presented and processed must adhere to the punishment imposed by the judge of the law, and the court may not consider or modify the verdict of the jury. There is no recourse whatever against the decision of the Court of Appeals. At the request of the interested party, a court of honor shall consider attacks against or denunciations of public officials or employees for purely official acts in the performance of their duties. The decision of this court may not be contested, and the publication so obliged shall insert it without comment, either before or after, although if it so wishes it may present excuses or explanations to the injured party in a separate article.6
B. Effect of this law in practice
1. Although it is true that journalists in Guatemala exercise their profession in the various media, it is also true that freedom of thought and expression is constrained by the prevailing climate of fear and threat, and that many journalists have been victims of the violence disrupting this country. Some Guatemalan intellectuals consider that freedom of expression of thought is seriously restricted.7
2. On February 7, 1981, in view of the murder of the journalist Jorge Marroquín on the 6th of that month, international news services reported that 17 journalists had been murdered in less than a month “by groups associated with the government and with activities of harassment against the police.” Marroquín, who worked for the paper Teleprensa, was killed by gunshot when on his way home, and the Association of Newspaper Journalists of Guatemala condemned this attack.
3. Freedom of thought and expression is restricted by the aforementioned circumstances, not only as regards journalists and other members of the media. Restrictions also extend to the dissemination of culture and freedom in teaching and in educational judgment. In this respect, criminal acts have been committed against professors and student leaders and there have been activities of harassment against the University of San Carlos, as set forth in documents in the possession of the Commission. This situation is incompatible with the provisions of the Constitution, which guarantee “freedom of instruction and of teaching criteria”; and provide that the University of San Carlos of Guatemala “is an autonomous institution with juridical personality,” which shall organize, direct, and develop public higher learning and university professional education in the nation, encourage with all the means at its disposal scientific and philosophical research in the advance of culture, and cooperate in the study and solution of national problems.8 The document with the denunciations on violations of human rights in Guatemala, presented to the Commission on March 1981 by the Frente Democrático contra la Represión, refers to the following matters, among others:
In 1980, 226 elementary school teachers, 389 high school and university students, and 89 university professors were murdered. At the same time, hundreds of teachers, university professors, students, and professionals, were forced to abandon their professional activities or studies, or go into exile.
As far as the present government is concerned, the university is the “center of subversion” and as such must be attacked, just as there are different sectors that are accused of being “communist,” for the simple reason of thinking about of organizing themselves for protection. The President of Guatemala himself and his staff members have made a number of statements attacking and accusing the university, as a means of justifying the many terrorist attacks against it.
The University Center of Occidente of the National University of San Carlos de Guatemala was burned and dynamited twice in 1980. Its most distinguished leaders and some of the country's outstanding intellectuals were murdered; in the meantime, others went into exile. At the beginning of April 1980, criminal persecution of the University of San Carlos become worse; its teaching and administrative staff and the student body became victims of government violence.9
4. In accordance with its statutory provisions, the Commission has also processed several denunciations on this matter. By way of example, note should be made of the kidnapping, torture and murder of José León Castañeda, a journalist, (Case 7359) on which the Commission adopted a resolution, (given in Chapter IV of this Report).10
5. As pointed out in the previous chapter, the Commission feels that there are no formal limitations in Guatemala on the freedom of thought and expression, nor are they the target of direct attack by the Government. Nevertheless, the climate of insecurity and terror prevailing in the country do in fact inhibit the full exercise of those freedoms because of the risks created for journalists who wish to exercise their profession freely. This explains, for example, a certain self-censorship which seems to be prevalent in virtually all the mass media.
Notes_____________________
1 Article 13 of the American Convention on Human Rights reads as follows: “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 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 adolescence. 5. Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitement 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.”
2 Articles 45 and 65 of the Constitution.
3 Articles 1, 3, and 5 of the law.
4 Articles 11 and 14 of the law.
5 Articles 27 and 28 of the law.
6 Articles 35, 37, 48, 53, 54, 67, 68, 69, 70, 71, and 77 of the law.
7 In his report on the situation of human rights in Guatemala, Dr. Rafael Cuevas del Cid, former Rector of the University of San Carlos states the following: “Severe conditions, generally not written, restrict freedom of thought. Almost every expression of protest or denunciation must be published, when it is so permitted, in paid media. A simple review of the daily press reveals how much influence free enterprise also has here, since, in the last analysis, it is this that determines what may and may not be published. The right to freedom of expression of thought includes freedom to seek, receive, and disseminate information and ideas of all kinds, without consideration of boundaries, whether orally, or in writing, either in print or in the form of art, or through any other chosen procedure. Indeed, anyone accustomed to receiving all types of information will be immediately surprised at the frugal coverage in our press and other media of news, articles, or comments that do not originate in the western world. Of course, this is notwithstanding the fact that well-known news services will make it a print of presenting only one side of the coin to the reader, with the usual division of the world into the good and the bad. The low cultural and political level of the great masses of our people—and even of many intellectuals—does not allow the Guatemalan to discern the degree of the ideological bombardment to which he is constantly being subjected, or how much of an attempt is being made to see that he confuses the interests of the owners and reporters with freedom of expression.
8 Articles 93 and 99 of the Constitution.
9 It should be noted that on May 28, 1980, Dr. Francisco Villagrán Kramer, who was then Vice President of the Republic, wrote to the Rector of the Universidad de San Carlos to express his consternation over the acts of violence committed against that university and the assassination of university professors and students, and his solidarity with them. The letter reads as follows: I wish to express to you, in your capacity as Acting Rector, and through you, to the Honorable Higher University Council my deep consternation and solidarity with you in the face of the series of events affecting the free and autonomous functioning of the Universidad de San Carlos, and particularly, the assassination of both university professors and students, such as Carlos René Recinos Sandoval, Professor of Administrative Law and Adviser to the People's Legal Aid Bureau. As you have said in statements to the national press, the University is perturbed by any act that affects the life of any Guatemalan citizen, or that impinges upon his right to an existence free of poverty and oppression of any kind. Both in my capacity as an academic and as Vice President of the Republic, I cannot but express to you that that concern is widespread and shared. In the face of the tragic events that have affected the working class as well as members of the Catholic Church, I have made it my point of duty to take action to have those acts clarified legally, and to ensure that the rightful legal guarantee is enforced as established by the Constitution. I attach copies of notes I sent to the President of the Congress of the Republic and to the Apostolic Nunciature accredited to Guatemala. The first has had no results, but I have been informed that the second letter has been forwarded to His Holiness Pope John Paul II. While these efforts would appear destined not to have any results, I find that I share the advice given me by the great Colombian writer, Gabriel García Márquez, that as small or modest as the effort may be, one must always strive to point out specific acts involving the violation of the rights of citizens and to see to it that action is taken within the confines of the law. I also attach the findings of an investigation undertaken at my request regarding Jesús Mendes Cotzajay and Hugo Alberto Espino Chávez. Not only do I wish to express to you my solidarity with the Universidad of San Carlos, but I also wish to offer you my cooperation in any action in which you or the Honorable Higher University Council feel it appropriate and advisable for my office to intervene in support or on behalf of the University's efforts.”