Guatemala: the temptation to use the emergency to silence criticism and criminalize "fake news"

It is evident that in extraordinary circumstances, such as the pandemic, extraordinary measures are required. And of that nature are, or so should be considered, the declarations of states of constitutional exception, such as the so-called states of alarm or  of emergency. In the specific case of Guatemala, the state of constitutional exception adopted is known as a state of Public Calamity (whose specific effects began to take effect as of March 17, 2020).

 

It is true that both the universal system for the protection of human rights contained, among others, in the International Covenant on Civil and Political Rights (ICCPR, art. 4), as well as  as  the Inter-American, developed mainly, through the American Convention on Human Rights (ACHR, art. 27) allow the so-called temporary and proportional “states of exception”, but it is important to specify that they at no time imply discretion in the exercise of the power to act outside the law and much less, without any control.

As Joaquín Urías says, “The most bizarre and at the same time most dangerous sections of the Constitution are those that provide for the possibility of ceasing to apply the constitutional order. They are usually explained with the idea of ​​"defense of the Constitution" from an ideological juggling act such as thinking that sometimes the Constitution needs to suspend its validity to defend itself from a threat. Behind this way of reasoning, there is for many the suspicion - or the conviction - that democracy is not the best system to face a crisis. This longing for dictatorships is a simplistic approach ”. (Blog Al Revés y al Derecho, "State of alarm and limitation of rights: no exception, no suspension", April 14, 2020). This appointment is especially relevant given that in several countries of Latin America, or rather, of the American continent, it has been possible to observe precisely how dictatorial yearnings emerge. 

In Guatemala, certain presidential attitudes have already drawn the attention of the Commission on Human Rights (IACHR) and its Office of the Special Rapporteur for Freedom of Expression (RELE) (report April 18, 2020). For example, it has been reported that a group of journalists have publicly denounced that they were disqualified by the President and other officials; as well as that virtual channels had been restricted to direct questions about the response to Covid-19. And as of April, the presidential provisions that are regularly taken under the State of Public Calamity have included a warning to the social media: “Based on the Public Order Law, advertising, media and broadcasting organizations are obliged to avoid publications that may cause confusion or panic or aggravate the situation, assuming the responsibilities that derive from it.”(“ The warning ”, hereinafter).

The verb "avoid" used in this presidential provision contains an obligation to "not do", that is, it imposes a duty of omission, under penalty of deducting the corresponding legal responsibilities, which may even be criminal (crime of violation of sanitary measures, art. 305 of the Penal Code, for example). This warning not  incurring in something (an alarming or confusing news or opinion, for example), is a subtle threat to the free emission of thought and information that, for the reasons explained below, even becomes a threat prior censorship. 

But before doing so, it seems relevant to mention some “curiosities or constitutional paradoxes”.

The Political Constitution of the Republic of Guatemala (CPRG) allows the temporary limitation of  certain and very limited constitutional rights (art. 138).  Among the eight (8) rights that are included, it expressly contemplates among them, the first paragraph of article 35 of said Constitution, which is the article that recognizes the freedom of thought emission. However, the first paragraph of the aforementioned article 35 establishes the following: “The emission of the thought by any means of diffusion is free, without censorship or prior license. This constitutional right may not be restricted by law or by any provision ”… (emphasis added). 

For its part, the Law of Public Order of Guatemala (Decree No. 7), which is a law that dates from 1965 and in which the possibility of decreeing temporary states of constitutional exception is developed more extensively, contains an old provision in Article 35, which literally says: “While any of the states of emergency lasts, publicity bodies are obliged to avoid publications that may cause confusion or panic or aggravate the situation. In such cases, as well as if they comment tendentiously on the circumstances, the director will be reprimanded by the respective authority; and in the event of a repeat offense, prior censorship may be imposed on the body in question ”.

For some constitutionalists there is the possibility that there are contradictions in the Constitution itself, that is, possible constitutional antinomies. Could it be considered that there is an antinomy in the CPRG by allowing, restricting freedom of expression in cases of constitutional exception (art. 138), and the constitutional declaration that said freedom cannot be restricted by law or any provision (art. 35) , without making any exceptions? If this response is interpreted under the "pro hominem" principle and also, following the guidelines that the Inter-American Court of Human Rights has established in the matter of freedom of expression, the impossibility of putting any type of restrictions on said freedom should prevail. Freedom and therefore freedom of expression should not be one of the fundamental rights that may be temporarily and proportionately limited or suspended during a state of alarm or calamity.

And if the thesis that freedom of expression cannot be limited in any way, even less, through censorship systems is effectively favored, then another curiosity is revealed: the unconstitutionality of a norm contained in a law of constitutional rank. I am referring to the complete incompatibility of Article 35 of the Public Order Law with the human rights protection system.

And finally, the warning contained in the presidential provisions highlighted with bold text at the beginning, and which has evidently been “inspired” by article 35 of the Public Order Law, did not go so far as to expressly warn the imposition of prior censorship in an open and express way, since it is the least that in the XXI century a President and his advisers have to know: that any form of prior censorship is totally prohibited under the international system for the protection of human rights, a prohibition that has become Mandatory constitutional law in Guatemala as a result, not only of the relevant judgments of the Inter-American Court of Human Rights, but also of judgments of the country's own Constitutional Court, which have formed jurisprudence in this regard.

But the warning does not stop promoting a kind of censorship - self-censorship - by indicating that publishing or commenting on news that may cause confusion, can generate processes against those who produce or generate them, for the deduction of responsibilities (which can, as already it was said, get to the criminal order).

If Guatemala were a country, like a few other countries in Latin America, that had an adequate social security and public health system, perhaps the facts themselves, of a newsworthy nature, would not be so alarming. If there were a vocation for transparency and accountability and the correct handling of data in times of pandemic, perhaps the Government itself would not generate so much confusion in the information it provides. But the systemic failure of the public health network in the country is already beginning to show, and  the little or no capacity of the authorities to manage the crisis and adequately disseminate information, and the additional underlying conditions that make Guatemala a country particularly vulnerable to the pandemic. 

Publish any news that reflects our inveterate institutional weakness, especially in public health, and the governmental inability that aggravates the facts (and  further aggravated, with possible cases of corruption) then becomes news that can cause confusion to anyone moderately concerned about what is happening. Hence, a "threat" could come from a government entity that could tell a media outlet to refrain from continuing to make publications such as one that appeared in its media, under penalty of being sanctioned with legal responsibilities for not doing so. 

The President, until now, has not used this "power", despite or despite his warning (it is known that the President does not have a natural sympathy for journalists). It is known of an isolated case of the former Secretary of Communication of the Presidency who warned a radio station that a news they had broadcast was alarmist and false and publicly admonished said radio station (Sonora), eliminating the recriminating tweet in a timely manner.

 

By Álvaro Castellanos Howell

Photo Credit: @mpbasham