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At present freedom of expression and information is restricted in Chile to an extent possibly unmatched by any other democratic society in the Western hemisphere. Current restrictions form part of a long established authoritarian tradition, which reached its apogee under the military government. Although restrictions on expression were taken to extreme limits by that government, they certainly did not originate with the military coup of September 1973 and had, in fact, coexisted with democratic institutions for decades prior to it.

After emerging in 1990 from a long and troubled period of military dictatorship under Gen. Augusto Pinochet, Chile has come to be seen as a model of political stability and economic creditworthiness in the hemisphere. Notching high growth rates year after year, the country embarked on an ambitious program of modernization intended to propel Chile over time into the league of developed nations. Yet reform of the country’s political institutions (among them, its authoritarian constitution) to deepen democratic values has dragged behind these advances. Progress in the reforms needed to extend the enjoyment of human rights to the whole population has been slow and uneven. This report is about the array of restrictions on freedom of expression that Chileans are still subject to, which limit their participation in an open and diverse public debate.

Restrictions on freedom of expression operate at different levels, and in each branch of government. In general they are not attributable to repressive action by the executive branch. Chile is not a country in which journalists or opposition politicians are physically harmed, harassed or threatened by state agents. Nor did the laws that restrict freedom of expression originate with the current administration of President Eduardo Frei Ruiz-Tagle or that of his elected predecessor, Patricio Aylwin. Some were introduced by the military government, under which censorship and harassment of dissidents became systematic, while others have deep roots in Chile’s republican history. The problem, then, is not one of abusive action by the current government, but of a failure to take long overdue steps to ensure that freedom of expression is protected and encouraged.

Many seemingly plausible arguments can be advanced to explain the freedom of expression deficit. Among them are political and institutional factors, particularly political restraints imposed by the country’s authoritarian constitution. Government officials frequently point out that the undemocraticcomposition of the Senate has given conservatives and former supporters of the military government disproportionate power in government, enabling them to frustrate or dilute any far-reaching reform initiatives. The seamless continuity between military rule and democratic government was based on hard negotiation and compromise between democratic leaders and the military. The need to respect this fragile consensus, it is argued, has imposed a tendency of caution, realism and deference to the middle ground, even self-censorship. It is also arguable that violations of freedom of expression arise mainly out of court rulings that reflect the conservative mentality of much of the judiciary. Many senior judges began their careers before the military government and matured under the restrictions of military rule, during which the courts notoriously failed to challenge abuse of executive power. It is true that the most serious cases of censorship in recent years have emanated not from the executive branch but from the judiciary, which has failed to give appropriate weight to the international human rights law treaties to which Chile is a signatory.

No doubt an adequate explanation of the current inhibition of the public debate in Chile would have to take into account all of these contextual arguments. It must be said, however, that they seem less convincing as Chilean democracy becomes more firmly established, since restrictions on freedom of expression show no real sign of diminishing. Furthermore, while these factors may help explain lack of positive government action, none of them can justify it. It is the government’s job to use its legitimacy and political capital to expand and strengthen the enjoyment of basic democratic rights. On some of the more conflictive issues discussed below, the government has preferred to keep its political capital intact, to the benefit of political objectives it seems to consider more important.

In this report, we present the findings of a year-long study of freedom of expression and information in Chile. The core concept used to structure our findings is that of the “public debate,” by which we mean the sum total of information and opinion available to people that enables them to make up their minds about a range of issues that arise in daily life, including ethical, spiritual, and political ones. A rich public debate empowers people to challenge wrong-doing and assert their rights as citizens. From this perspective we analyze successively restrictions that operate in the fields of political expression, the written media, cinema, and television.

Below we present a summary of our conclusions under four headings, and then consider current government legal initiatives on freedom of expression and information. Finally, we propose a list of recommendations that addressproblems we believe have been overlooked and whose implementation would significantly strengthen this essential democratic right.

Laws Punishing Contempt For Authority

Verbal expressions considered insulting high-ranking state officials carry prison sentences or fines under current laws. These include Articles 263 and 264 of the Criminal Code, Article 284 of the Code of Military Justice (threats or insults against members of the armed forces) and Article 6(b) of the State Security Law (Ley de Seguridad Interior del Estado, LSE), which punishes those who “defame, libel or calumniate,” the president, government ministers, parliamentarians, senior judges and the commanders-in-chief of the armed forces. They are variants of the continent-wide phenomenon of laws penalizing contempt of authority, known in Spanish as leyes de desacato. These are defined by the Inter-American Commission on Human Rights as “a class of legislation that criminalizes expression which offends, insults or threatens a public functionary in the performance of his or her official duties.”

In the early years of the Aylwin government many journalists and politicians were hauled before military courts to answer charges of defaming General Pinochet. When in 1992 President Aylwin passed these cases to civilian courts, military and police chiefs instead charged critics with the crime of sedition (Article 276 of the Code of Military Justice), over which military courts retained jurisdiction. The application of these military laws has decreased over the years, but their continuing existence undoubtedly imposes powerful constraints on any questioning of the armed forces.

The potential for abuse of the sedition law is great. The current interpretation of the law labels as seditious any comment by a civilian which might affect the morale of the armed forces or the police, and brings the offender before a military court. Since the offended party is the armed forces, the military court represents the victim, as well as acting both as prosecutor and judge.

Under a bill currently in Congress, the government proposes to transfer all prosecutions of all civilians exercising the right of freedom of opinion and information to civilian courts, undoubtedly a positive step. Military laws, however, should not be applicable to civilians, whatever court is responsible for trying them. Nor should military personnel be prosecuted for exercising their right to express criticism, except in circumstances in which military discipline is evidently threatened. Human rights jurisprudence recently developed in Europe recognizes that Article 10 of the European Convention, which refers to freedom of expression, applies to servicemen just as it does to other persons.

In the midst of an extensive program of penal and judicial reform undertaken by both the Aylwin and Frei governments, the military justice structure bequeathed by General Pinochet remains virtually intact, a beacon of authoritarianism. With the recent appointment of Pinochet’s successor, Gen. Ricardo Izurieta, it is reasonable to hope that the government will undertake a thorough review of the Code of Military Justice, eliminating from its jurisdiction all but military offenses.

Obligatory deference to authority is not limited to the military sphere. Article 6(b) of the State Security Law, which governs national security and public order, gives public authorities special protection from injurious criticism. The article has been invoked against critics during two successive elected governments. These prosecutions include several initiated by Supreme Court judges and one by the legislature for an alleged attack on its institutional honor. The defendant in that case was a former Pinochet minister. At least seven other politicians, including several governing coalition parliamentarians, and fifteen journalists, have been charged since 1990 under Article 6(b) of the State Security Law. A former president of the Chamber of Deputies (the lower house of Congress) barely escaped prosecution after he had appeased army indignation by appearing in person to clarify his offending remark.

With its origins in the nineteenth century, this contempt for authority law has accompanied Chilean democracy for many decades, and has been invoked under every government since the year 1958, when its most recent version was enacted. Contempt for authority is premised on the notion that public officials deserve a greater quota of respect than ordinary citizens because of the authority they exercise. For their authority to be effective, the argument goes, state officials must be treated with deference. However, in a democracy respect for authority must be based on its legitimacy, and legitimacy is always open to question and challenge. For this reason, international human rights law holds that the limits of permissible criticism must be wider with regard to a person in public office than to a private citizen. Tolerance of criticism, even ill-founded and unfair criticism, is one of the obligations of public office in a democracy.

The contempt for authority provision in the State Security Law has more serious implications for the defendant than similar provisions in the Criminal Code (which have been less frequently invoked). The offense is classified legally as an attack on “public order,” and court precedent over many years has held that the damage to public order follows from the verbal expressions used and does not require to be proven for the prosecution to be upheld. By following this doctrine, the courts have evaded the crucial job ofestablishing that public order was in fact damaged or threatened by an offensive expression, and that the restriction imposed was necessary to safeguard the rights of all.

Prosecutions under Article 6(b) follow special truncated procedures, and rights to a judicial review by the Supreme Court are limited compared to those provided in the Criminal Code for criminal libel. Furthermore, abuse of the law by politicians or officials to silence criticism is facilitated by the fact that the offended parties may both instigate and withdraw prosecutions at their own discretion. If the essential purpose of a contempt prosecution is to safeguard public order and to protect society, a public official should not enjoy personal discretion to call it off once his or her personal honor is satisfied. The underlying logic of the law — that strong criticism of a political leader is tantamount to contempt for the public office he or she holds — allows officials to use their public office as a shield against complaints, denunciations and public questioning directed at them in their capacity as public officials. The law does not even require that any particular individuals be offended: it also serves to protect the “honor” of state institutions themselves against criticism which targets no particular individual. In May 1996, the Supreme Court upheld the conviction of a former Pinochet minister, Francisco Javier Cuadra, for remarks considered insulting to the honor of Congress, sentencing him to an eighteen-month suspended sentence. Cuadra, who had expressed concern in a magazine interview about drug consumption by parliamentarians, but refused to name anyone in particular, was prosecuted by the legislature collectively.

Governments are under an obligation to protect public order and secure the enjoyment of human rights. In international human rights law, public order may be a legitimate ground for restricting freedom of expression. Nevertheless, extensive and comprehensive restrictions that jeopardize the principle of freedom of expression itself are not permissible. Any restriction of freedom of expression must be shown to be necessary. It must be tailored and in proportion to an actual risk to public order. The position of Human Rights Watch is that public order cannot legitimately be cited to justify restraining freedom of expression, unless there are exceptional circumstances in which its exercise presents a clear and imminent threat of violent disturbance. In reviewing the history of Article 6(b) prosecutions from the early 1970s, Human Rights Watch found no cases in which it could be sustained that the impugned expressions presented a threat to public order. This supports our view that the real purpose of the law, despite its title, is not to protect public order at all, but simply to establish an ill-defined limit to public criticism of government authorities.

In a valuable report on contempt for authority laws published in 1995, the Inter-American Commission on Human Rights concluded that such laws, in general, are “incompatible with Article 13 of the American Convention on Human Rights because they suppress the freedom of expression necessary for the proper functioning of a democratic society.” Regrettably, the Chilean government has still not presented legislation to Congress to repeal Article 6 (b) of the State Security Law. Politicians continue to avail themselves of it, as can be seen in a prosecution of two journalists by Sen. Augusto Pinochet announced in August 1998.

Prior Censorship

Although the Chilean constitution prohibits prior censorship, it makes an explicit exception for film censorship, which is carried out by an agency of the Ministry of Education called the Council of Cinematic Classification (Consejo de Clasificación Cinematográfica, CCC). This body classifies films for age-group suitability and may also ban films altogether from public exhibition. Films banned by the CCC may not be shown on television either. Press reports indicate that the last film to be banned was in 1994, but it is difficult to vouch for this since the CCC is not required to publish its decisions or report on its activities. In any case, previous bans remain in effect today, including many imposed under the military government for ideological reasons. The jurisprudence established in the Last Temptation of Christ case, analyzed below, does not allow the CCC to revise its own bans once they have been confirmed by its appeals panel. Television stations, whether in free access television or cable, face fines and ultimately suspension of their licenses for transmitting these banned films.

With the exception of the CCC, prior censorship in Chile does not emanate from the executive branch, but from the courts. Judicial decisions to prohibit a publication or the exhibition of a film derive from complaints lodged by private individuals who may request injunctions against authors or publishers to prevent a publication they believe violates their constitutional right to honor. This injunction procedure, known as a protection writ (recurso de protección), provides a rapid remedy for anyone whose constitutional rights have been, or are in danger of being, violated. In most situations the writ would be filed against a public authority in defense of a plaintiff's right, but when the endangered right is private honor, two rights — that of honor and that of freedom of expression — appear to meet in head-on conflict.

This was the legal logic behind the banning of the circulation in Chile of Francisco Martorell’s book, Impunidad Diplomática, in 1993. Not only didthe court base its decision on an alleged conflict of rights; it held that the protection of honor and private life were of superior status to freedom of expression. This doctrine is a recipe for censorship and runs counter to norms established in international law. It forgets that the drafters of the American Convention on Human Rights drew a clear and precise line in accommodating the rights of free expression and of honor. The convention distinguishes between “prior restraint” and the “subsequent imposition of liability.” The former is impermissible as a means of protecting honor from abuses of freedom of expression, while the latter is considered an acceptable and adequate remedy for such abuses. This was the view of the Inter-American Commission on Human Rights, which found in May 1996 that Chile had violated Article 13 of the American Convention on Human Rights by banning Martorell’s book.

In June 1997 the Supreme Court upheld an Appeals Court decision granting a protection writ to prohibit the transmission on cable television of Martin Scorsese’s film The Last Temptation of Christ. The CCC had banned the film in 1988 but later reversed its decision, giving the film an over-eighteens classification which allowed it to be shown on television after 10:00 p.m. The petitioners, a group of lawyers acting for a pro-censorship lobby, held that the film offended the honor of Christ and of his followers, including the petitioners. The Appeals Court verdict followed the same reasoning as its counterpart in the Martorell case, by explicitly arguing that “respect and protection of honor takes precedence over freedom to omit opinions and inform.” In the Last Temptation case, however, the concept of honor was taken to hitherto unprecedented lengths when the film was held to offend the honor of Christ. By this logic the followers of any historical figure could present similar petitions to ban critical discussion of them. In accepting that the film offended the honor of the petitioners, the court implied that the right to personal honor or reputation entailed a right to be free from exposure to ideas which present an alternative moral or religious view. This is an extension of the notion of honor into a forbidden zone. As to the truth or error of such an “alternative view,” the court reserved for itself the exclusive right to decide on the matter, arguing that the “historical deformation of an event or a person” was not information protected by freedom of expression norms. The court also argued fallaciously that prohibiting such information was not prior censorship, because censorship was uniquely a resource of repressive governments.

This aberrant decision reveals not only a very shallow commitment to freedom of expression, but also a disturbing disregard of Chile’s human rights obligations under international conventions it has ratified, and which the courts are obliged to take into account.

Freedom to Inform and the Right to be Informed

The population’s access to information and the right to emit it are crucial to the principle of government accountability on which democracy rests. For seventeen years the military government instilled the opposite principle, according to which the exercise of authority requires information to be strictly controlled. The legacy of this doctrine can still be felt in existing laws, in the day-to-day practice of state institutions, and in the practice of journalism.

Current administrative statutes allow public officials broad discretion in deciding what official information may be made available to the public. “Confidentiality” is not defined in the law, as all restrictions on freedom of information must be according to the American Convention on Human Rights. Nor are there clear and narrow legal guidelines determining what military secrets are or when national security may legitimately be invoked in prohibiting access to or publication of information on grounds of secrecy. Chile lacks a specific remedy such as a habeas data writ by which a person to may reverse a public official’s decision to deny access to information. The difficulties experienced by journalists in obtaining first-hand official statistics and documents have encouraged a reliance on second-hand information, normally that released by government officials.

Several special restrictions on freedom of information predate the military government and continue to gravely affect the right to information as well as the transparency of the judicial system. Judges are allowed to declare a reporting ban that prevents the press from carrying any information on the progress of a criminal investigation until the court lifts the ban. Specific reasons showing why the ban is necessary do not need to be given. Reporting bans extend not just to confidential documents or information pertaining to the investigation (under long-established laws all the proceedings of judicial investigations in the early phase are secret anyway). They include any information relating to the case whatsoever.

Under current law, the bans may be invoked when publication about a case, in the opinion of the judge, may prejudice a criminal investigation or affect public morals, state security or public order. While each of these grounds for restricting information on court cases is permitted in international human rights law, Human Rights Watch considers that use of the measure by Chilean courts has far exceeded permissible grounds, as the comprehensive and indefinite nature of these bans facilitates abuse. Usually bans are imposed in cases in which public interest is intense and judges wish to avoid publicity. They are typically justified as necessary to “ensure the success of the investigation” whenthe media publish information leaked by court officials. Rather then enforcing the law to prevent such leaks, the courts are tempted to opt for the more expedient solution of banning any and all information about the case. Such bans have even been imposed in libel cases, in which their evident purpose has been to protect the reputation of the litigants against public questioning. At least twenty-three court cases were affected by reporting bans between March 1990 and 1994, and the practice continues, the most recent example being in July 1998. In many of these cases bans were maintained for years even though no progress was being made in the criminal investigation.


Beyond restrictions that are mandated by law, freedom of expression and information in Chile is also subject to the less easily detectable, but widespread and insidious practice of self-censorship. By self-censorship we mean editorial suppression — exercised at any level of the publishing process — of material which, if published, might incur a sanction that exceeds the grounds for restriction permissible under international law. Self-censorship is often interpreted more widely than this, so as to include unduly restrictive editorial control, or the suppression by media directors or editors of information because of vague apprehensions at the possible political consequences of its publication. This latter sense, widely used in the Chilean press under the term autocensura, does not necessarily violate international free expression norms despite its evidently negative effect on the frankness and transparency of the public debate. Independence of editorial decision-making is an inviolable element of freedom of expression. Direct government intervention in editorial policy, such as when a minister tries to prevent the publication of an item about which the government has received advance warning, amounts to a form of prior censorship. The practice of government ministers persistently calling media directors and editors to protest an article or program, or trying to influence editorial policy so that it is more in line with the government’s political agenda is also undue interference in editorial freedom. In response to such pressure, editors may practice self-censorship in order to avoid negative government reactions. The chilling effect of government pressure is likely to be greater when the media concerned are under state ownership or control, since these media lack the autonomy and economic independence to ignore it. Such interference is especially objectionable if those media have been established as a public service and must respect the plurality of views in the public.

The medium most affected by self-censorship is television. The television watchdog body, the National Television Council (Consejo Nacionalde Televisión, CNTV), is required to penalize television stations, including cable services, for any of a total of fourteen possible infractions, all of them relating to program content. Punishments may take the form of a warning, fines or ultimately the cancellation of a broadcasting license. To avoid penalties stations must regulate their output. To the extent that penalties exceed legitimate or justifiable restrictions, the stations must engage in self-censorship.

Most of the penalties have been incurred by stations exceeding the limits defined by the CNTV for the portrayal of violence and sex. This kind of restriction is permitted under international human rights norms. Article 13 (4) of the American Convention on Human Rights allows prior censorship of public entertainments for the sole purpose of regulating access to them for the moral protection of childhood and adolescence. Under the American Convention on Human Rights media may also be held subsequently liable for the publication of material considered offensive to public morals. No golden mean exists in the limits imposed by public morality. Although Chile is at the conservative end of the spectrum in continental terms, international law recognizes that in this area standards may legitimately vary according to cultural and religious values. Our concern is with the CNTV’s mandate to preserve the “correct functioning” of the medium, which is defined as ensuring “permanent respect for” a number of consensual values. These values have not been submitted to any legal definition, and include such all-embracing categories as “the moral and cultural values of the nation.” International jurisprudence has established that vaguely defined restrictions on freedom of expression are suspect, since they are open to arbitrary interpretation and, by creating uncertainty about possible legal consequences, discourage the expression of views that challenge accepted orthodoxies.

In addition, the CNTV is required to apply penalties to stations that transmit before 10:00 p.m. films that have been classified by the CCC as for over-eighteens. This norm accounts for over half the charges formulated by the council. Because many of the films in question were classified under the military government when ideological bans were in force, this norm allows illegitimate and undemocratic restrictions to continue to have effect under democratic governments. Many of the films in this category are very tame in comparison with everyday television fare, and many of them are classics.

Self-censorship resulting from this norm is notoriously evident in cable. Every month the cable operators replace hundreds of scheduled transmissions with unannounced substitute films. They insist that they are only complying with the law. However, recent programming policy of one of the two major operators, Metrópolis Intercom, indicates that a conservative editorialline surpassing the requirements of the law is also at work. Evidence of this emerged with increasing clarity in 1998 when the company, after repeated cuts, removed one cable station entirely from its offer. After answering public protests by referring to its obligations to respect the law, the company then took out full-page inserts in the newspapers defending its editorial line as a legitimate protection of children from exposure to violence or sex.

Many Chileans have also written letters to the press to protest about films that are cut entirely, broadcast in expurgated form or sanitized by bleeping offending words from the soundtrack. It makes little difference to them that the cuts were made because of, or in excess of, the requirements of national laws. They feel they are not getting the service they thought they had contracted, that the national cable operators do not have the right to decide what parts of the signal’s output they may view, and that protection of children is their parents’ business.

Editorial policy at the largest open television channels, the state channel TVN and the Catholic University’s UCTV has also involved direct intervention by station executives in cuts, alterations, and cancellation of programs. In the case of UCTV which was run autocratically by the same director for twenty-four years until his death in July 1998, strict moral codes reflecting conservative Catholic values have always prevailed and are taken for granted by many Chileans. By contrast, TVN has a public service mission, despite the fact that it is self-financing, and it is legally mandated to ensure pluralism. That it be genuinely pluralistic is important, in that minority views and interests not viewed with sympathy by the Catholic Church have little opportunity otherwise of reaching a mass audience. In practice, after a liberal programming policy at the beginning of the Aylwin administration, TVN’s pluralism has increasingly given way to a tendency to discard items that might expose the station to controversy. This tendency may be explained in part as self-censorship imposed by the requirements of the law on “correct functioning.” However, in some cases there are strong indications that external pressures or political considerations are involved. Controversial programs have been canceled at the last minute or information of evident interest to the public removed. An example is a 1996 investigation into police torture by TVN’s Special Report into police that was suppressed, apparently to avoid offending the Carabineros police.

Government Reform Initiatives

As this summary indicates, freedom of expression and information is restricted directly or indirectly by a wide spectrum of laws ranging fromprovisions in the constitution to the statutes that govern the functioning of public institutions. In 1996 the Inter-American Commission on Human Rights held Chile responsible for an act of prior censorship in the Martorell case, detailed in this report. Three other freedom of expression complaints have been filed before by the Commission and are under consideration. Indignation and disquiet at media restrictions have been expressed by individuals across the political spectrum, but especially in the parties of the governing coalition. While, in general, public reaction has been muted and limited to a minority, opposition to the censorship of cable, which many subscribers believe they have a right to watch without censorship, appears to be much more widespread.

After eight years of democratic government the progress made in expanding freedom of expression is disappointing in the extreme. On the positive side, there is growing recognition in government of the need for a more agile flow of information to the public to increase the accountability of public administration and the transparency of business. Yet the most important legislation to promote the right to information — the press law — is still pending after five years of parliamentary discussion, and another bill ending film censorship has not even been debated.

As this report went to press, the current version of the proposed press law would abolish reporting bans entirely. It also establishes in principle that administrative rulings and their supporting documents are public and punishes public officials who prevent media access to opinions and information. A bill on “access to administrative information” presented to Congress by President Frei in 1995 would establish a general right to information for the first time in Chilean legislation. It specifies the circumstances under which public officials may deny information and provides a mechanism to appeal to the courts for redress if information is denied. This same bill also provides protection to journalists against being compelled by the courts to reveal the identity of their sources. New legal initiatives on the regulation of television have been promised but have yet to materialize.

Other measures, although equally necessary and overdue, have yet to be tackled. In the first place, contempt for authority laws in the Code of Military Justice noted above, and the similar State Security Law, continue to sharply limit freedom of expression in a fundamental area: evaluation and critique of government institutions and officials.

Secondly, there have been no proposals to strengthen guarantees of freedom of expression during a state of emergency; Chilean legislation still allows restrictions in excess of international norms and does not permit an effective judicial remedy. Although the International Covenant on Civil andPolitical Rights requires that such measures may be taken only “to the extent strictly required by the exigencies of the situation,” Article 41(3) of the constitution can be interpreted as allowing courts to challenge the reasonableness of measures adopted under a state of emergency. Nevertheless, when emergency measures were in force under the military government, the courts ruled consistently that this article excluded them ruling on the proportionality of measures limiting freedom of expression. In fact, this self-limiting jurisprudence predates the 1980 constitution. The protection of human rights under states of emergency should be strengthened by explicitly providing the judiciary with powers to rule on the necessity and proportionality of measures adopted. The government has also not addressed the problem of defining in law the circumstances in which national security may be invoked to limit freedom of expression. The issue surfaced in 1993 when the navy prevented the circulation of a treatise on military intelligence by a former naval captain on spurious national security grounds (the Palamara case, see Chapter IV).


Protection of freedom of opinion, expression and information is one of the basic human rights that governments everywhere have a duty to respect. Abstention from restrictive administrative acts is only part of their duty. Governments also have an affirmative responsibility to reform the laws to strengthen and expand human rights protection. The fact that restrictions emanate from the other branches of government as much as from the executive does not affect this responsibility.

While we acknowledge and welcome legislative reforms the government has proposed in parliament, these measure must be given top priority and the government must use its political capital in the legislature to the full to speed their passage into law. The government must also enact other legal reforms to bring Chilean laws into line with international standards. These include the following:

· The government should repeal articles 263 and 264 the Criminal Code, article 284 and 276 of the Code of Military Justice, and Article 6(b) of the State Security Law, all of which penalize forms of expression considered insulting or offensive to members of the military or state authorities.

· There should be no more prosecutions of civilians by military courts. The armed forces should be required to carry out an investigation into the status of any prosecutions of civilians for crimes of opinion or expression — including sedition charges — that remain open in military courts. These prosecutions should be promptly closed and those affected informed;

· Legislation should be introduced to define the concept of a military secret, so that the principles on which information is classified on national security grounds are clearly understood. The enforcement of secrecy rules should be based on the principle that any constraint on access to information must be the least restrictive means possible of protecting a national security interest. In general, the government should base its approach in this area on the Johannesburg Principles on National Security, Freedom of Expression and Access to Information.

· Current laws governing exceptional powers granted to the executive branch during states of emergency should be reviewed, to ensure that restrictions on freedom of expression when constitutional guarantees are suspended are strictly tailored to specific circumstances and are only adopted when there is no less restrictive option. The grounds for such suspensions should always be open to challenge in a court of law.

· The government should ensure that a protection writ, a remedy against violation of a constitutional right, cannot be abused to obtain injunctions against the publication of material held to be offensive to honor or privacy. This violates the prohibition of prior censorship, and the due process principle that culpability must be established after a fair hearing.

· The government should review current provisions in the Code of Criminal Procedures that allow judges to impound published material or prohibit its publication after the presentation of libel writs. In no case should judges be allowed to remove publications from circulation in such circumstances. This kind of action violates the principle that libel liability is only incurred after publication and also amounts to prior censorship.

· Human Rights Watch welcomes legislative proposals to lessen penalties for the crimes of libel and calumny, and to reduce the scope of criminal liability for these offenses. The government should adopt as a general principle that conflicts arising out of libel and calumny allegations should be resolved by civil litigation rather than criminal prosecution, and penalties should exclude imprisonment.

· Both the composition and the powers of the Film Classification Council should be reviewed to ensure that the body is democratic and representative of different opinions in society, that its classification decisions are public information, and that the decisions may be reviewed by an independent court. The council’s current powers of prior censorship should be terminated. Television channels should not be penalized for transmitting films classified by the council while ideological prohibition was in force.

· Current laws governing the functions of the CNTV should be amended to ensure that the restrictions to which television programs are subject are closely based on the grounds recognized as legitimate in the International Covenant on Civil and Political Rights and the American Convention on Human Rights. In particular, penalties should not be imposed on stations for questioning or criticizing values of any kind.

· The government should provide the judiciary with updated information on decisions on freedom of expression issues reached in international human rights bodies, including the relevant United Nations commissions and committees, the Inter-American Commission on Human Rights and the European Commission of Human Rights, as well as in the respective courts in each jurisdiction.

· The government should reinstate the proposal originally made by the Aylwin government to establish the office of a People’s Defender or Ombudsman, among whose powers should be included investigation of, and recommendations of remedies for, violations of freedom of expression or information.

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