More than three years since it was first presented to Congress in April 1997, a constitutional reform to abolish film censorship is still awaiting a final vote. Meanwhile, Chile was recently censured by the Inter-American Court of Human Rights for violating the American Convention on Human Rights by prohibiting the exhibition of Martin Scorsese's film, The Last Temptation of Christ.
The legal regime governing the exhibition of motion pictures and videos has not changed since the early years of the military government, when prior censorship affected print as well as audio-visual media. Article 19(12) of the Constitution, promulgated by the military government in 1980, prohibits prior censorship, but provides in its final paragraph that "the law shall establish a system of censorship for the exhibition and advertising of cinematographic production." The law to which the constitutional article refers, Decree Law 679 of October 1974, established a Film Classification Council (Consejo de Calificación Cinematográfica, CCC), with powers to reject films for public exhibition, as well as trailers, film advertising and posters. Ministry of Education regulations introduced in April 1975 obliges the CCC also to vet videos, including those for private use. The composition of the CCC remains unchanged from 1974 and still includes representatives of the police (Carabineros), the army, navy, and air force.
The persistence of these anachronistic laws violates Chile's obligation under Article 13 of the American Convention on Human Rights to eliminate prior censorship. The American Convention allows film classification bodies only to protect minors, not to ban films altogether. In practice, the CCC has not exercised its powers to ban films since 1994. However, current laws still require television channels, including cable, not to exhibit any film banned by the CCC in earlier years, including many prohibited for political and ideological reasons ("those that foment or propagate doctrines or ideas that are contrary to the fundamental principles of the fatherland or nationality, like Marxism and others").80 Also, the age-group classifications, which date from the military government, many of them patently absurd, have to be respected by television, since films classified as for over-18's can only be shownafter 10:00 p.m.
Chile's cable television operators receive lists of films programmed by international cable companies sufficiently in advance to check them against lists of censored films provided by the CCC. Few banned films get through the net. According to the president of the television watch-dog body, the National Council of Television (Consejo Nacional de Televisión, CNTV), only three banned films were shown from 1994-1997.81 The CNTV is required by law to sanction the stations responsible, but has increasingly turned a blind eye to retain some public credibility. This happened in May 2000, when the cable operator VTR Cablexpress transmitted a Film and Arts Channel screening of the film Pepi, Luci, Bom y Otras Chicas del Montón, by Spanish director Pedro Almodóvar. Made in 1980, the film was one of six banned by the CCC in 1992. VTR Cablexpress's competitor, Metrópolis-Intercom, replaced the feature with a documentary. While the CNTV deliberated, Chile's intellectuals and artists signed a full-page insert against film censorship in La Tercera, stating that "the hour has arrived to make good our intentions and stop censoring the list of forbidden films."82 Eventually, the CNTV determined that the film was harmless and took no action.
Meanwhile, the Normandie art theater in Santiago pressed the CCC to reclassify the film so that it could be shown in a cycle planned by the cinema later in the year. When Human Rights Watch spoke to a member of the theater's management in August 2000 he was cautiously optimistic. However, in January 2001, the press reported that an official of the Ministry of Education had turned down a request from the theater to reclassify the film. The grounds given were that the Supreme Court had ruled in The Last Temptation of Christ case that the CCC had no powers to authorize the exhibition of a film rejected by the council's appeals body. Until this ruling, the council had allowed the showing of several films banned under the military government, including Last Tango in Paris and Fiddler on the Roof.83
The powers currently enjoyed by the CCC to vet videos represent a significant interference by the state into the zone of privacy. At present, all filmed material entering the country has to pass by the CCC, regardless of whether it is for private or public use. In June 2000, for example, television scriptwriter Pablo Illanes ordered a DVD format film entitled "Vampyros Lesbos" by DHL from Amazon.com. It went to customs, which sent it to the CCC. Eager for news of his film, and unable to reach the CCC by phone, Illanes called DHL, who told him that the CCC had informed the company that the film had been retained and was going to be destroyed "because it contains lesbian material." According to an unnamed CCC source reported in La Tercera: "as we have no (DVD viewing) equipment, we cannot evaluate it. There is a secretary who sifts out the tapes by their title. Not even the councillors get to see that material."84 The press reported later that Illanes eventually received his film from the CCC after the board had acquired DVD viewing equipment and passed it for exhibition.85
Some film fans have had the repeated experience of videos ordered through the internet being impounded incustoms. Their experience suggests that chance has a big role to play in whether they eventually get to see their acquisitions. Different customs inspectors may be more or less zealous, and even CCC officials may give contradictory rulings. In September 1999, civil engineer Pedro Muga wrote to Jaime Pérez de Arce, the under-secretary of education and president of the CCC, to complain after four films he had ordered, including Ken Russell's The Devils, John Waters' Pink Flamingos, and Emanuelle 2, were rejected by the CCC. Pérez de Arce wrote back a sympathetic letter and returned the films to him. However, a year later, a similar letter to Pérez de Arce's replacement, José Weinstein, this time concerning Bigas Luna's The Ages of Lulu, which was prohibited in Chile in 1993, received a quite different response. Weinstein replied that the CCC had acted perfectly within the law and that he could not return the film to Muga. In August 2000, Muga filed a plea for protection of his constitutional right of respect for his privacy, the first ever such legal claim, with the Santiago Appeals Court, which agreed to hear it.86
The banning in 1997 of Martin Scorsese's The Last Temptation of Christ can be blamed more on the judiciary's disregard for freedom of expression than it can on the CCC. Having rejected the film for exhibition in 1988, the council revised its opinion in 1996 and authorized the film for viewing by persons over age eighteen.
In November 1996, lawyers representing "Chile's Future" (Porvenir de Chile), a conservative Catholic group, lodged a protection writ with the Santiago Appeals Court, on the grounds that the CCC's decision to allow the film to be shown violated the right to honor of Jesus Christ, the Catholic Church, and of themselves as practising Catholics. As noted in Chapter III, Article 19(4) of the Constitution protects the honor of the person and the family.87 A group of anti-censorship lawyers tried to make itself a party to the case in opposition to the writ, on the grounds that, if granted, it would lead to an act of censorship prohibited by Chile's Constitution and the American Convention on Human Rights. The Appeals Court, however, ruled that the ban's opponents had no direct interest in the case and could not be admitted as a party. It granted the protection writ, annulling the CCC's decision to allow the film's exhibition. The Supreme Court upheld the ruling in June 1997.
The following September, the Association of Lawyers for Public Liberties filed a complaint against Chile with the Inter-American Commission on Human Rights, asserting that the following articles of the American Convention had been violated: Articles 13 (prohibition of prior censorship), 12 (freedom of conscience), 2 (obligation to legislate to ensure rights under the Convention are protected), and 1(1) (obligation to respect and guarantee rights under the Convention).88 In its response to the commission, the government of Chile did not deny the facts or contest the violation of the American Convention. It said that it did not agree with the Supreme Court decision, but asserted that it could not be held responsible for violations of the convention, since the Supreme Court is an autonomous and independent power of state, and the executive branch is prohibited under the rule of law from intervening in its decisions.89 It also explained that it had proposed a bill to Congress to amend the Constitution and eliminate film censorship.
In September 1998, the commission found that Chile had violated all of the provisions of the American Convention cited by the complainants. To remedy the violations, it called on the Chilean authorities to lift the ban, eliminate prior censorship of films from Chile's Constitution and statute books, and ensure that organs of the State used their powers to protect freedom of expression, conscience and religion. It also clearly rejected the Chilean government's defense of lack of responsibility. The commission found that whatever branch of government was directly responsible for violations of the Convention (in this case the judiciary for banning the film, and the legislature, for failing to bring Chile's laws into line with its obligations under the Convention), those violations were attributable under international law to the Chilean State.90
In January 1999 the commission forwarded the case to the Inter-American Court of Human Rights.91 The Chilean government again stated that it did not dispute the facts, and that it disagreed with the jurisprudence of the Supreme Court on freedom of expression.92 It claimed, however, that it could not be held responsible for the actions of the Supreme Court when it did not acquiesce in those actions. It also urged the Inter-American Court to take notice of the pending reforms, by which, it claimed, Chile was in the process of eliminating prior censorship of films.
The court ruled against Chile in February 2001, finding that Chile's use of prior censorship violated Article 13 of the American Convention, and that Chile had thus failed to respect and guarantee the rights enumerated in the Convention, as required under Articles 1 and 2. Like the commission, the court rejected the government's claim that it was not responsible for the acts of censorship at issue because they stemmed from the judicial branch. (Unlike the commission, however, the court did not find any violation of the American Convention's Article 12, which protects freedom of conscience and religion.) The decision, which was unanimous, was the court's first ruling on freedom of expression issues. It was also the first time the court has ruled against Chile.
Besides requiring the Chilean government to reimburse the complainants for the costs of the suit, the Inter-American Court ruled that Chile must, "within a reasonable period," amend its domestic law to eliminate prior censorship and allow the screening of the Last Temptation. It thus ordered the government to report back to the court in six months, describing the measures taken in this regard.
With this additional impetus, it is to be hoped that the anti-censorship bill will finally pass. The legislation has wide support in the press and public opinion, and was championed by President Lagos in his electoral campaign. In November 1999 the reform was approved by the Chamber of Deputies; it is currently awaiting approval in the Senate.
Congress has also embarked on discussions regarding a law to replace Decree Law 679, after members of the Chamber of Deputies tabled two proposals for debate. Apart from abolishing prior censorship, the bills propose to democratize the composition of the CCC (eliminating its military members), allow it to review and alter classifications made previously, allow appeals against classifications, and provide safeguards to protect minors from pornographic or excessively violent films. One of the bills proposes to establish a category of "inconvenient" films, which could only be shown in specially licensed theaters.
At the time of this writing, a government inter-ministerial working group was meeting to complete the draft of a new film classification law, taking into account these proposals, and adapted to cater for new technologies and formats. The draft law made classification dependent on a request from an interested body (thereby ending the obligation to submit material intending for private viewing). It also proposed that films designated as pornographic (a term the law attempts to define) be restricted for exhibition in special theaters distant from residential areas and schools. 93 All of the measures proposed dispense entirely with the powers of the CCC to reject films for public exhibition for any reason, and are therefore consistent with Chile's international obligations to protect freedom of expression.
While Human Rights Watch welcomes these measures, it is not clear that the promulgation of the new law would allow the exhibition of The Last Temptation of Christ, since the film was not banned by the CCC, but by the Supreme Court. Yet, the Chilean Supreme Court, as part of the Chilean State, is as bound by the rulings of the Inter-American Court as is the Chilean government. If the Supreme Court does not reconsider its decision to ban The Last Temptation of Christ, Chile will be in contempt of the Inter-American Court and in violation of its treaty obligations.9480 Decree Law 679 (1974). The CCC banned nearly six hundred films between 1974 and 1992. They include Norman Jewison's The Fiddler on the Roof , banned as subversive in 1974, and rehabilitated in 1992; Woody Allen's All You Wanted to Know about Sex, But Were Afraid to Ask, Fellini's Casanova, Monty Python's The Life of Brian, Ken Russell's The Devils, and Ingmar Bergman's The Silence. Some of these films have been shown on cable TV, but by law the stations could be fined for screening them. See Rafael Valle, "Los diez casos mas insólitos de la censura cinematográfica en Chile," La Tercera, January 12, 2000. 81 Cámera de Diputados, "Informe de la Comisión de Constitución, Legislación y Justicia sobre el proyecto de reforma constitucional que consagra el derecho a la libre creación artística y elimina la censura cinematográfica, sustituyéndola por un sistema de calificación," Boletín No. 2016-07-1, November 1999, p. 8. 82 "Chilenos contra la censura," La Tercera, June 9, 2000. 83 Soledad Ortega, "El lio del CCC," El Mostrador, January 6, 2001 (www.elmostrador.cl).
84 "Denuncian irregularidad del Consejo Cinematográfico," La Tercera, July 7, 2000.
85 See Claudia Urzúa, "La oportunidad de los cinéfilos," El Mostrador, September 3, 2000. http://www.elmostrador.cl/modules/Noticias/constructor/detalle_noticia.asp?id_noticia=9701
86 Claudia Urzúa, "Cinéfilo presenta recurso de protección contra el CCC," El Mostrador, September 3, 2000.
87 The legal grounds for the decision are analyzed in Human Rights Watch, The Limits of Tolerance, pp.137-42.
88 For an analysis of the arguments adduced by the courts to ban the film, see Human Rights Watch, The Limits of Tolerance, pp.137-42.
89 The situation was the exact reverse in Costa Rica, where in June 1999 the Constitutional Court ordered the government to pay damages to the distributors for censoring The Last Temptation. The film was banned by the censor's office in May 1989. See "Sanción a Costa Rica por Ultima Tentación de Cristo," La Tercera, July 5, 1999.
90 The commission cited Ian Brownlie's Principles of Public International Law, which quotes Lord McNair on the Law of Treaties: "[A] State has a right to delegate to its judicial department the application and interpretation of treaties. If, however, the courts commit errors in that task or decline to give effect to the treaty or are unable to do so because the necessary change in, or addition to, the national law has not been made, their judgments involve the State in a breach of treaty." Ian Brownlie, Principles of Public International Law (Oxford: Clarendon Press, 1990), p. 450.
91 Chile has recognized the Inter-American Court's jurisdiction since 1990.
92 Caso "La Ultima Tentación de Cristo," Inter-American Court of Human Rights, February 5, 2001, para. 62.
93 Seminar on the new film law with Paulina Donoso, legal advisor at the Ministry of the Secretariat of Government, and Alejandro Salinas, human rights advisor at the Ministry of Foreign Affairs, University of Diego Portales Law Faculty, Forum for Freedom of Expression, August 10, 2000.
94 See Rafael Valle, "La Ultima Tentación pone a la justicia chilena en trance histórico," La Tercera, February 17, 1999.