Senator Alberto Espina Otero
President, Constitution, Legislation, Justice and Regulation Committee
Dear Senator Espina,
I am writing to you to in connection with the draft law to repeal provisions of the Criminal Code and the Code of Military Justice that penalize "disrespect" of certain government authorities. (No. 212-347). I understand that the Senate's Constitution, Legislation, Justice and Regulation Committee, that you chair, will shortly reconvene to discuss this bill.
Human Rights Watch has advocated the repeal of disrespect provisions in Chile and other countries of the region for more than a decade. When this bill was presented to Congress in August 2002 we welcomed it as a reform that was necessary to guarantee the full protection of free expression in Chile. Since then, however, we have been concerned both by the long delay in the bill's approval and by amendments in both chambers of Congress to the original version of the bill that severely limit its scope.
If the bill is approved as amended in the report of the Senate's Constitution, Legislation, Justice and Regulation Committee (Bulletin No. 3.048-07, dated January 18, 2005), Chile will lose an opportunity to be among the first Latin American nations to get entirely rid of these undemocratic laws. Its legislation will still be incompatible, in several respects, with general principles of law on freedom of expression that are incorporated into the human rights treaties Chile has ratified.
We welcome the elimination of disrespect provisions from the criminal code (Art. 263). However, we are concerned that the text currently under discussion in the Senate preserves the disrespect provisions in the Code of Military Justice (CMJ) and maintains the jurisdiction of military courts over speech offenses affecting the armed forces and the uniformed police.
The Code of Military Justice
The Chamber of Deputies rejected the government's proposal to remove references to "insults" to members of the military and the uniformed police from arts. 284 and 417, respectively, of the CMJ. The retention of these provisions means that members of the armed forces and police, unlike civilian authorities, will still be protected from criticism by explicit disrespect provisions. While this article remains in force, Chile cannot be said to have implemented fully the recommendations of the Inter-American Commission on Human Rights to member states to repeal laws that punish disrespect of public officials. The armed forces will still have special legal protection from public criticism unavailable to ordinary civilians.
Notably, the government's original proposal was to exclude civilians from prosecution for the offence of "sedicion impropia" (art. 276 of the CMJ). The Chamber of Deputies voted to incorporate it into the criminal code, thus ensuring that civilians be judged by ordinary courts. Yet the commission that you chair decided to keep the offense of sedición impropia under military jurisdiction. A fair hearing by an independent and impartial court is essential in order to ensure that this provision is not abused to suppress legitimate speech. Military tribunals do not accord with this requirement, since they do not provide guarantees of independence and impartiality in such cases.
It is regrettable that the commission apparently did not give careful consideration to the views of international human rights bodies on the subject of military justice. The U.N. Human Rights Committee opposes the use of military courts to try civilians under any circumstances. In 1999, the Committee expressly recommended that Chile amend its law "so as to restrict the jurisdiction of military courts to trials only of military personnel charged with offences of an exclusively military nature." (Concluding observations on the fourth periodic report of Chile, March 30, 1999. CCPR/C/SR. 1740, para 205). )
The Inter-American Court of Human Rights has also opposed the trial of civilians by military courts. In the case of four Chileans who were tried and convicted of treason by a military court in Peru (Castillo Petruzzi et al. v. Peru 1999), the court noted that "When a military court takes jurisdiction over a matter that regular courts should hear, the individual's right to a hearing by a competent, independent and impartial tribunal previously established by law and, a fortiori, his right to due process is violated." The Inter-American Commission on Human Rights reminded all member states in its 1998 Annual Report that "their citizens must be judged pursuant to ordinary law and by their natural judges. Thus, civilians should not be subject to military tribunals."
We respectfully urge the Constitution, Legislation, Justice and Regulation Committee to remove the words "to offend or insult by word or deed or by any other means" from articles 284 and 417 of the Code of Military Justice, as proposed in the original government bill. We also urge the committee to amend article 276 of the CJM, to ensure that civilians cannot be tried by military tribunals for speech offenses affecting the armed forces.
The Criminal Code
While we welcome the elimination of disrespect provisions in article 263 of the criminal code, we are concerned that the new wording of article 264 agreed by the committee you preside could in practice allow politicians and officials to use it to suppress public debate. In penalizing expressions that any public official in exercise of their office may consider threatening, the law must draw a clear line between physical threats and other sorts of threats that do not imply violence or criminality. These may include threats of legal action or of public exposure, or simply denunciations that are felt to be threatening because they are potentially damaging to a politician's reputation. Such expressions should be considered part of the cut and thrust of public debate in democracies and should not be subject to any special prohibition beyond that afforded to all citizens by ordinary libel laws.
For these reasons, we trust that the committee that you chair will take the necessary steps to ensure that this article is suitably drafted so as to be quite clear that it refers only to serious threats of physical violence against authorities.
All of the recommendations above are consistent with Chile's international legal obligations on free expression and due process under the human rights treaties it has signed, and they follow the specific recommendations of international human rights bodies.
Finally, I would be most grateful if you would circulate this letter to all members of the Constitution, Legislation, Justice and Regulation Committee that you chair.
José Miguel Vivanco