1. Introduction
Current regulations and practices on freedom of expression are a mixture of the authoritarian heritage and democratic elements. Freedom of expression and access to information were severely restricted in Chile on national security grounds during the former military regime (1973-1990). A broad, non-democratic concept of national security was utilized to prevent citizens from enjoying freedom of expression and other basic rights. National security was seen by the military regime as the most important component of a society; the idea was that communism not only involved in external aggression, but tried to penetrate every country from the inside, through the Unions, the Political Parties, the Universities and the Churches. As a consequence, the main role of the Armed Forces shifted from defending the country from external aggressions to defending it from its internal enemies. Due to the importance of their role, the Armed Forces considered themselves to be at the top of the hierarchies of the country.2
While in this report we will focus on the current Chilean situation, frequent references to the military regime will be necessary to analyze the context in which some of the legislation was enacted.
2. Constitutional provisions
A. Permanent regulations
Art. 19.12 of the Constitution recognizes freedom of opinion and of information without prior censorship. This is notwithstanding the need to answer for offenses and abuses committed in the exercise of these freedoms, according to the rules specified by the law.3 An exception is provided regarding motion pictures, as the Constitution states that the law will establish a system of censorship for their exhibition and publicity. Additionally, prior censorship is applied through indirect means, although not recognized as such by the tribunals (i.e., see below the Palamara case).
Access to information is not explicitly enshrined in the Constitution.
It has to be noted, however, that international human rights standards were elevated to a constitutional status as a result of a reform to the Constitution in 1989.4 Reformed article 5.2 states that "[t]he exercise of sovereignty recognizes as a limitation the respect for the fundamental rights emanated from human nature. It is a duty of the organs of the State to respect and promote these rights, guaranteed by this Constitution and by international treaties ratified by Chile and in force."5 As a consequence, the human rights provisions contained in these treaties have now constitutional status in Chile.
Among other human rights treaties, Chile is currently party to the International Covenant on Civil and Political Rights, to its Optional Protocol and to the American Convention on Human Rights. To these three treaties, Chile has made reservations to the effect that the jurisdiction of the Human Rights Committee (both under article 41 of the Covenant and under the Optional Protocol) and of the Inter-American Commission and Court of Human Rights will not cover any alleged violations of human rights which began to occur before 11 March, 1990. These reservations were made with the aim of preventing international scrutiny of disappearances, although naturally the Commission is competent to handle this type of communications by virtue of Chile's membership to the Organization of American States. Chile is also a party to the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, and to other international human rights treaties.
However, up to date, domestic tribunals have rarely used regulations contained in these treaties as a basis for deciding freedom of expression cases. One of these cases was that of Megavision, when the Courts invoked article 13 of the American Convention on Human Rights, which forbids prior censorship, to dismiss a penalty of US$6,150 against a television network. The penalty had been imposed by the National Television Council (a State agency) for broadcasting a surreptitiously-recorded political conversation. The Courts declared that the broadcast was not imputable to the TV network. Despite the fact that it was the President of Megavision who played the recording, this happened in the context of a live program in which he had been invited as a private citizen, and without giving prior notice to the network. The Courts concluded that sanctioning the network for this situation would be equivalent to indirectly allow prior censorship in violation of the American Convention.6
B. States of Exception
Under State of Exception regulations contained in articles 39 through 41 of the Constitution harsh limitations on freedom of expression are established. Under State of Assembly, the Constitution allows the Executive Branch to suspend or restrict freedom of opinion. Under powers conferred by State of Siege and by State of Catastrophe, freedom of information and opinion can be restricted. A State of Assembly can be declared in case of an external war; internal war or internal commotion are the basis to declare a State of Siege. A State of Catastrophe can be declared in case of a public calamity (this has usually been applied to earthquakes and other kinds of natural disasters).
The above mentioned provisions on States of Exception are inconsistent with international standards. The International Covenant on Civil and Political Rights provides in article 4 that a threat to the life of the nation is required to take measures derogating some rights to some extent, including the right to freedom of opinion and expression. However, the Chilean Constitution does not require such a high standard to be met in order to restrict-- and under certain circumstances even suspend-- freedom of opinion and expression.
In addition, while the Covenant states that such measures can be taken "to the extent strictly required by the exigencies of the situation", that is, it requires that the factual conditions be analyzed, domestic Chilean tribunals are prevented by the Constitution from analyzing the facts surrounding the application of derogating measures. In this regard, article 41.3 of the Constitution provides that the tribunals are not allowed to qualify the basis or factual circumstances invoked by the authorities in order to apply derogating measures .7 As a consequence, judges may only control legal formalities of derogating measures, but not "the exigencies of the situation", as the Covenant requires. What used to be a jurisprudential practice (judges' self-restraint to analyze factual conditions surrounding derogating measures) became a constitutional provision.8
3. Legislation concerning access to information and restrictions on national security grounds
A. The Armed Forces
The Code of Military Justice and a series of Regulations contain norms about access to information and restrictions on national security grounds. Article 436 of the Code of Military Justice defines secret documents as those directly related by content to State security, national defense, internal public order or the security of persons.
Articles 144 and 144 bis of the Code of Military Justice regulate the disclosure of secret documents during judicial investigations. According to art.144, the Military Prosecutor in charge of the investigation is the only person who can request the submission of secret documents. In judicial cases where the Prosecutor deems it necessary to request secret documents, he will have to ask the respective Commander in Chief, who can refuse to submit the document on the grounds that State security, national defense, internal public order or the security of persons would be affected. Should the Prosecutor consider it indispensable to obtain the document, the Supreme Court, in addition to the Legal Counsel of the Army, will decide on the matter.9 In any event, individuals involved in a judicial investigation conducted by a Military Prosecutor are not allowed access to any secret documents, not even in cases where the disclosure of a secret document would be relevant to the individual's defense.
The situation is similar in cases within civilian jurisdiction, as the civilian judge in charge of a criminal investigation will have to request the submission of a secret document to the respective Commander in Chief (art.53 of the Criminal Procedural Code in connection to articles 144 and 144 bis of the Military Code).
Further provisions about the protection of secrecy within the Armed Forces are contained in the Regulations on Intelligence and Military Security. These regulations provide, as a general rule, that all matters concerning the Armed Forces are public. It adds, however, that such matters become classified when their disclosure would actually or potentially harm the army or the State, either within the country or abroad. These provisions have usually been construed as establishing a sort of objective responsibility, that is, a person will be considered responsible solely on the basis of having had knowledge of a classified document without the powers or the authorization to do so.
These Regulations contain detailed provisions about the formalities required to gain access to secret documents. To obtain and to handle classified information, a member of the military has to have an authorization, which is given by assigning him what could be called a degree of access ("grado de acceso"). The type of classified documents that he can examine will depend on the degree of access he is granted.
The Administrative Regulations on Correspondence and Documentation go further by establishing a classification of the potential harm caused by unpermitted disclosures and by ruling on degrees of secrecy.
In addition, it has to be observed that there are regulations on secrecy about matters related to the Armed Forces which are also applicable to former military officers. This is the case of the Regulations of the Garrison Service of the Army.
The case of Humberto Palamara. The case of Humberto Palamara illustrates the current domestic standards on restrictions to have access to information and to freedom of expression on national security grounds. Mr. Palamara is a former member of the Intelligence Services of the Navy who attempted to publish a book on Intelligence matters in 1993. Although he was already retired from the Navy by the time he wrote the book, the Military Courts declared the case to fall under their jurisdiction. As a matter of fact, there were two judicial cases in connection to this matter, both under military jurisdiction.
In one case, Mr. Palamara was convicted in the end for two criminal offenses. The first, for not having requested authorization from the Navy to publish the book "Ethics and Intelligence Services" ("Etica y Servicios de Inteligencia" in the Spanish original), causing danger to national security and defense. The second, for having refused to give the book to the authorities when requested to do so.10 In the end, he was convicted to two suspended sentences, each of them of 61 days. Furthermore, Mr. Palamara was also condemned to an accessory penalty of confiscation of his book.
The case went through a military tribunal; a Martial Court, which operates as a Court of Appeals within the military jurisdiction, and has a mixed civilian/military composition, with predominance of the military (3 military justices and 2 civilians); and the Supreme Court, where a representative of the Armed Forces is added to the panel of five Supreme Court Justices for cases under military jurisdiction. The case is currently pending at the Inter-American Commission on Human Rights.
As to the first charge, Mr. Palamara's failure to request authorization was considered to be contrary to the Ordinance of the Navy of Chile, which states in art. 89 as follows:
"It is likewise forbidden to publish, directly or indirectly, articles concerning matters of a secret or confidential nature, matters of a political or religious nature, as well as others that could lead to controversies in which the good name of the Navy could be involved.
"Taking into account the above mentioned restrictions, Navy personnel can make publications in the press, in their personal capacity, with the prior knowledge and authorization of his/her Commandant or the Competent Navy Authority.
"In times of war or when circumstances so require, the Commander in Chief of the Navy can suspend or limit this authorization. 11
At some latter point during the procedure, the court ordered the book to be reviewed by two experts in order to find out whether it threatened national security. It is very striking in this case that the military experts who reviewed the book at the request of the tribunal concluded that it contained no confidential information or analysis affecting national security or defense. This development led to the appointment of other military experts who concluded that the book "affects the institutional interests" of the Navy, but in no way do they state that the Navy might be harmed as a result of its publication. They base their statement about how the book affects the institutional interests of the Navy saying that "in his [referring to Mr. Palamara] statement that his piece responds 'to the moral obligation that a person has to disseminate his knowledge and experiences to others', it is implicit that the author's capacity to write on the topic is based on his Navy training as an intelligence specialist".
In fact, Mr. Palamara's book contains no description about Chilean or foreign past or present intelligence activities. Instead, it describes the main standards of intelligence, emphasizing the need for these to be adapted to ethical criteria. Although it has not been explicitly stated by Navy authorities, what might have aroused some suspicions about Mr. Palamara's book is the fact that it particularly stresses the necessity of keeping intelligence activities in accordance with human rights standards, opposing torture and stating that it is not the role of intelligence services to detain or interrogate persons.12
As to the charge for disobedience, the judicial decision was based in article 337.3 of the Military Code. The grounds of the charge were that Mr. Palamara had been forbidden to give any information to the press, and that despite this prohibition he did so.
In responding to the charges issued against him in this process, Mr. Palamara disputed the facts and the military jurisdiction over his case. However, military jurisdiction is typical in Chile for this type of case, so it was not unexpected that the military tribunal would keep its jurisdiction as it did.
As to the second process, Mr. Palamara was convicted for libel (desacato13) against the Navy Prosecutor to a suspended sentence of 61 days imprisonment. This process was started as a consequence of some statements of Mr. Palamara to the press following the seizure of the book ordered by the Prosecutor. Literally, Mr. Palamara said to the press that "there are reasons to assume that the Office of the Navy Prosecutor ("Fiscalía Naval") forged legal documents and lied to the Court of Appeals when consulted about who had made the complaint that initiated the summary process as well as about the case number (...)."14
In the first instance, the military tribunal absolved Mr. Palamara of the charge of libel, noting that his statement had not been addressed to the Navy Prosecutor ("Fiscal Naval") nor to any individual, but to the Office of the Navy Prosecutor ("Fiscalía Naval"), thus lacking a key element of libel. This resolution, however, was changed by the Martial Court in a divided decision, condemning Mr. Palamara to serve 61 days of imprisonment. Finally, the Supreme Court, also in a divided decision, confirmed the Martial Court's decision on July 20, 1995. This case was also brought before the Inter-American Commission on Human Rights, where it is pending. It is expected that the Commission will decide the case for Mr. Palamara, since the Commission has stated that desacato laws are incompatible with the American Convention on Human Rights.15
Up to date, Mr. Palamara's "Ethics and Intelligence" has not been published, although its contents do not even violate the harsh Chilean military standards. The judicial investigation was focused on the issue of the required authorization, while the issue of the book's contents themselves was placed in a secondary position.
B. Public Administration
In Chile, it is largely the public administration which decides about confidentiality issues. There is no tradition of bringing cases before the tribunals to dispute public administration decisions on these matters.
The Regulations of the Administration (Estatuto Administrativo) establishes as an obligation for public employees to keep secret issues considered confidential by law, by executive regulations, by their nature or according to special instructions (Statute, art. 55). Public employees who do not comply with this obligation are administratively as well as criminally responsible. Penalties consist in the suspension from the position for up to 540 days and/or a fine; in the case of grave harm being done to the public cause (causa pública) as a consequence of the disclosure, imprisonment from 5 years and one day to 20 years is provided.
In addition to the severity of the potential penalties, it is surprising that no explicit warning of the confidential character of a document is required: a document may be confidential by nature, and it is the duty of public employees to recognize this confidential character by their mere examination. The Comptroller General of the Republic has made extensive use of the category "confidential by nature" to keep documents secret.16
4. Permanent limitations on grounds of national security and public order.
In addition to the regulations on States of Exception, the Chilean legislation establishes permanent limitations to freedom of expression based on grounds of national security and public order. Throughout the XXth Century, Chile has had a series of laws on this matter. Currently, the most important piece of legislation in this regard is Law No 12,927, called Law on State Security ("Ley de Seguridad del Estado").
Law 12,927 was enacted in 1958. Over the last four decades, this legislation has been subject to many transformations and has been applied in very different contexts. In particular, the military regime used this legislation as a key tool to repress its opponents, perverting its purpose by protecting a dictatorial regime with this legislation. The most repressive provisions introduced to this law by the military regime have been derogated during the transition to democracy,17 although a number of provisions introduced by the dictatorship are still in force. However, regarding freedom of expression the current regulations are basically the same that existed prior to the military regime.
The originally declared aim of Law 12,927 was to protect the democratic system. However, from the very beginning this legislation lacked enough consideration for human rights and, in applying it, the tribunals have expanded the limitations for rights that this law provides.
First of all, it should be remarked that, given the traditional weakness of the Courts in Chile to confront issues of a political character, the fact that special legislation on national security remains without being incorporated into the Criminal Code, causes protection for human rights to continue to be insufficient. In fact, the Courts usually do not take the general principles of the Criminal Code into consideration when applying national security regulations.
One basic problem of Law 12,927 is that many of its provisions are vague and too broad. For instance, Article 4, which regulates crimes against Internal State Security, punishes a person who in any way attempts to act or in fact acts against the Established Government.
Secondly, Law 12927 is not clear enough in the protection of the democratic system, although this was reportedly its basic purpose. Many of its provisions refer to the protection of the "Established Government" ("Gobierno Constituido"). In Spanish, this is an ambiguous expression, which means both the political organization of the State and the Executive Branch of Power. Many provisions of the Law, including several concerning freedom of expression, use the words "Established Government", and the Courts have often considered only the situation of the Executive.
In applying the provisions of the Law on State Security, the Courts have consistently declared that it is beyond their powers to determine whether national security or public order was indeed affected in a specific case. As a consequence, freedom of expression and other rights have been further limited. In regulating offenses against public order, Article 6 provides: "In the following cases an offense against public order is committed", and enumerates eight situations. This has led to a sort of unchallengeable assumption of criminal responsibility, despite the fact that public order may not have been actually affected in specific cases. The Courts have stated that "Article 6 of the Law [12,927] establishes that those who engage in any of the conducts that the law describes 'commit a crime against the public order'. In this way, it is the law itself that assumes that this crime causes a disturbance of the public order in some way. Therefore, it is not proper for the judge to rule contrary to the explicit wording of the law, which is clear, reaching a different conclusion by way of interpretation."18 In a high profile case during the sixties, the defense of socialist Senator Carlos Altamirano, who was accused of advocacy of violence, alleged that his words were not able to cause harm to the public order; the Courts did not consider this argument at all.19
In addition, the Chilean Courts have failed to implement the Bill of Rights provided in the Constitution as regards national security and public order cases. The list of rights contained in the Constitution would provide a guide for an appropriate reading of the law; however, the Courts have tried to implement national security and public order regulations regardless the constitutional context, turning the constitutional norms meaningless in this respect. In the case against Altamirano, the Court ruled that "It is a matter for the legislator, who promulgates the law, and not for the judge, whose role is limited to its application, to protect that right [freedom of expression]." 20
In national security and public order cases which ended in a dismissal of the charges, the Courts have not changed this doctrine, but rather have made reference to legal technicalities to absolve the accused. This happened, for instance, in the case Against Sergio Onofre Jarpa and others (1967), in which the board members of the Partido Nacional, a right wing Party, were accused of defaming the Christian-Democrat Government of Eduardo Frei Montalva. Jarpa and the other members of the Board were acquitted on grounds of legal technicalities, so avoiding the Court having to address the issue of freedom of speech clearly involved.21 The same occurred in a case against the Director of the newspaper "La Segunda" in 1969: no references to freedom of speech were made.22
During the military regime this legislation was systematically used to repress the opposition, and after that period Law 12,927 has not been widely used. However, some cases have been initiated in situations of political nature. The most publicized of them has been the accusation in 1995 against Francisco Javier Cuadra, a former Minister of the military regime who publicly stated that there are members of Congress who use cocaine, refusing to identify them. The House of Representatives and the Senate, following almost unanimous agreements, accused Cuadra of violating the State Security Law.
In the first instance, Mr. Cuadra was condemned to a suspended sentence for disturbing the public order. This decision was later revoked by the Court of Appeals, declaring that Mr. Cuadra's statements affected in no way the public order. The decision quoted the Minister of Interior, Mr. Carlos Figueroa, who said to the press before charges were presented against Mr. Cuadra that public order has not been affected. This opinions was relevant because the Minister of Interior is precisely the authority whose role is to protect public order.
Apparently, the Court of Appeal's decision was definitive, since Congress had just passed legislation restricting the access to the Supreme Court to reduce its docket of cases, and cases like Mr. Cuadra's should not be reviewed by the Supreme Court. However, the very same parliamentaries that had passed that legislation presented the Cuadra case before the Supreme Court. The Court found a very peculiar ground to reaffirm its jurisdiction over the case, stating that the legislation restricting its powers was partially unconstitutional. It was unprecedented for the Supreme Court to declare a law to be unconstitutional without a prior request by the complainant, as the Court did in this case. Of course, the parliamentaries could not make such petition of unconstitutionality, since they had just approved the legislation.
Finally, the Supreme Court condemned Mr. Cuadra in 1996 for an offence against public order, based on the doctrine that it is beyond its powers to determine whether or not public order has been in fact affected.
Ironically, one year later, Mr. José Antonio Viera-Gallo, a member of the Socialist Party who as the President of the Chamber of Deputies had been one of the leaders of the accusation against Mr. Cuadra, was himself accused before the tribunals for an offence against public order by the Army Commander in Chief and former dictator General Augusto Pinochet, who invoked the same Law 12,927 on State Security applied to Mr. Cuadra. In a TV program, Mr. Viera-Gallo said in the context of a live discussion on corruption that during his government Gen. Pinochet "put his hands" ("metió las manos"). This was interpreted by Gen. Pinochet as an accusation of corruption. The judicial proceedings were quickly closed after Mr. Viera-Gallo publicly apologized, stating that in no way was his intention to accuse Gen. Pinochet. As a result of this incident, Mr. Viera-Gallo changed his opinion about the State Security Law, saying it should be repealed.
Another well publicized case was that against Mr. Arturo Barrios, President of the Youth of the Socialist Party, who said that Gen. Pinochet was an assassin. He was convicted to a 541 days suspended sentence for disturbing the public order under the State Security Law. Mr. Barrios is currently under parole and a complaint is going to be presented at the Inter-American Commission.
In a very similar case, Ms. Gladys Marín, Secretary General of the Communist Party, was accused by Gen. Pinochet of disturbing the public order under the State Security Law for having called him an assassin. After governmental authorities intervened, however, Gen. Pinochet withdrew the charges.
A fourth case presented by Gen. Pinochet on State Security grounds, this time against Mr. Nolberto Díaz, then President of the Youth of the Christian Democratic Party, ended up with a dismissal of charges. In a broadcasting program, Mr. Díaz stated in 1996 that "they want us [the youngsters] to serve at the draft having the same elderly, former dictator, as the Commander in Chief of the Armed Forces."23 He also said that he thought that links existed between Chilean army officers and the killing of a former Chilean Intelligence officer occurred in Uruguay, asking about the purpose of a trip made by Gen. Pinochet to Uruguay when a judicial investigation was being carried out. The judge in charge of the case against Mr. Diaz closed the case until sufficient proof is provided. The Court of Appeals confirmed this decision, and the Supreme Court refused to review the case arguing lack of jurisdiction in late 1996. The case has not been opened again.
When this report was being concluded in early 1998, TV comedian Rafael Gumucio and journalist Paula Coddou were charged under the State Security Law for an offence against public order. In responding to an humorous survey about the year 1997 prepared by Ms. Coddou for a magazine, Mr. Gumucio featured Mr. Servando Jordán, who served as President of the Supreme Court over the year, as "old, ugly and with a turbid past" ("viejo, feo y con un pasado turbio"). It has to be noted that while serving as President of the Supreme Court, a motion for the impeachment of Mr. Jordán was presented at the Chamber of Deputies on grounds of corruption and links with drug dealers. The petition for impeachment was denied by a very close margin.
The use of Law 12,927 in this and other cases during the transition to democracy shows that the trend in its application is basically the same as that in the democratic period prior to the dictatorship, that is, national security and public are not seen in connection to the protection of human rights, and, although no longer used as a mechanism for systematic repression, this legislation is still a powerful tool to restrict freedom of expression beyond the limits imposed by the Constitution and international human rights treaties.24
5. Use of military courts to try cases involving civilians
The Military Justice system has not experienced significant transformations during the transition to democracy and it currently fails to meet Rule of Law standards. A few isolated reforms have been introduced over the last years, but the Military Courts still have jurisdiction over a wide range of cases, including many involving civilians. These include cases on freedom of expression. Grave problems of lack of independence of the Military Courts and of insufficient recognition of the rights of the accused persist.
A reform introduced to the Military Code in 1991 reduced the jurisdiction of military courts regarding freedom of expression. As a result of this reform, the military courts are no longer competent in cases involving civilians accused of libel or defamation against military personnel or police officers.
However, by different means, the military courts have managed to circumvent this restriction. The best-known case in this regard is that of Hector Salazar, a human rights lawyer, who was accused for charges of improper sedition ("sedición impropia") and submitted to military jurisdiction in 1994. Mr. Salazar was at that time the lawyer representing the relatives of three members of the Executive Committee of the Communist Party assassinated by Carabineros (police officers) in 1985. A civilian judge condemned several police officers to life imprisonment for assassination and declared that General Rodolfo Stange, director of Carabineros had obstructed the investigation by recommending his subordinates to lie to the judge. The Government then repeatedly and publicly called Gen. Stange to resign from his position, but he refused.25 The civilian judge sent the documentation on Gen. Stange's obstruction of the investigation to a military tribunal.
In this context, attorney Salazar declared to the television: "I ask any Carabinero of Chile if he/she is in a position to obey an order given by general Stange, risking, like others have already risked, life imprisonment."26 Mr. Salazar was referring to Gen. Stange's intervention in the case of the triple assassination. As a consequence of his statements, charges against Mr. Salazar were issued by a military prosecutor for improper sedition, an offense defined by the Military Code in article 276 as "the induction to any disturbance or disorder, either orally, in written or by any other means, or the transmission of ideas to the troops intended to cause them annoyance or lack of enthusiasm in the [military] service, or to encourage gossip about the service." For civilians, the penalty ranges from 61 days to five years of imprisonment.
The charges against Mr. Salazar were confirmed by a Martial Court in a split decision, with the three military justices voting to uphold the charges and the two civilian justices to dismiss them. At the Supreme Court, initially there was a tie, with three Justices (including the representative from the army) upholding the charges and the three others dismissing them. None of the sides argued in depth about their motives, stating only that the proof was sufficient to charge Mr. Salazar (the three Justices who voted to uphold the decision), and that the proof was not enough (the three Justices who voted to reverse the decision). To break the tie, the acting Supreme Court President was called to vote and he decided for the dismissal, on the grounds that attorney Salazar's expressions were not suitable to cause the carabineros annoyance or lack of enthusiasm in their service, since the President of the Republic had publicly asked Gen. Stange to resign in connection with the same facts (the civilian judge declaration Gen. Stange had obstructed the investigation of the assassinations).
In any event, this case showed the broad spectrum of the military jurisdiction and its impact on freedom of expression.27
6. Conscientious Objection
In Chile, conscientious objection does not exist in the legislation, neither on religious or any other grounds. Recently some debate has arisen about the possibility of establishing a system parallel to the draft, but it is not envisioned that reforms on this matter will take place in the near future. Indeed, the Committee of National Defense of the House of Representatives, on national security grounds, voted unanimously against this reform.
Jehovah's Witnesses are in a particular position regarding the draft. Although a special exemption does not exist for them in the law, in practice, following an informal process of selection, Jehovah's Witnesses are usually not recruited into the military because of their beliefs. The same applies to those who are in the process of becoming priests.
7. Conclusion
A non-democratic concept of national security has been widely used in Chile to restrict freedom of expression and access to information. This situation was seriously aggravated during the military regime, and some legal provisions dating from that period are still in force. The deficiencies of legislation are not overcome by judicial supervision. As said above, when dealing with national security problems judges tend to use laxer legal criteria than those normally used.
The possibilities of amending the pertinent legislation in the near future are scarce. The military maintain an important share of political power and, due to laws enacted just before the change of government from General Pinochet to President Aylwin, Congress does not reflect the majorities obtained in the polls by the coalition of political parties supporting the Government. As long as these factors do not change, legislation in this area will most surely remain as it is.
Beyond the issue of the military, there seem to be certain authoritarian components that pervade Chilean culture, placing additional obstacles to the development of a democratic concept of national security, compatible with the protection of freedom of expression. Therefore, in order to overcome the current restrictions we must have not only political will, but also cultural transformations.
In this sense, perhaps a cause for hope is that Chile has become a party to several human rights treaties. Important ones are the American Convention on Human Rights and the International Covenant on Civil and Political Rights, since Chile may now be subject to the scrutiny of the Inter-American Commission and Court of Human Rights and/or of the UN Human Rights Committee. Opinions and decisions of these organs would significantly aid those who are committed to the task of eliminating both the authoritarian elements of Chilean culture and the legacy of the military regime.
2 In a speech on the occasion of the third anniversary of the coup, General Pinochet stated that "National security emerges as a concept oriented not only to protect the State's territorial integrity, but also-- and particularly-- to defend the essential values constituting the national soul or tradition, because otherwise the very same national identity would be destroyed." El Mercurio newspaper, September 12, 1976. For further analysis on the national security doctrine under the military regime, consult Felipe González, Jorge Mera and Juan Enrique Vargas, Protección Democrática de la Seguridad Interior: Estados de Excepción y Derecho Penal Político (Programa de Derechos Humanos, Universidad Academia de Humanismo Cristiano, 1991), pp.141-221.
3 The current Constitution entered into force in 1981, that is, during the military regime. Subsequently, it has been reformed in several matters.
4 This reform was introduced as a result of an agreement between the military government and the democratic opposition and approved in a Plebiscite.
5 "El ejercicio de la soberanía reconoce como limitación el respeto a los derechos esenciales emanados de la naturaleza humana. Es deber de los órganos del Estado respetar y promover tales derechos, garantizados por esta Constitución, así como por los tratados internacionales ratificados por Chile y que se encuentren vigentes."
6 This case was highly disputed, since the recorded conversation consisted in a discussion in a crude language between a potential presidential candidate, Senator Sebastián Piñera, and a journalist to harass Evelyn Matthei, another potential presidential candidate of the same party, on issues about which she might be inconsistent, such as a draft legislation on divorce. Ms. Matthei obtained the tape from an army telecommunications officer and handed it over to Megavision's President, Ricardo Claro. The army officer later argued that he had recorded the conversation at random. As a result of this scandal, both Mr. Piñera and Ms. Matthei withdrew from the presidential race. Proceedings were addressed against the TV network, and no charges on personal liability were pursued against Mr. Claro. See Red Televisa Megavisión S.A. con Consejo Nacional de Televisión, S.Ct., March 18, 1993, upholding the decision of the Court of Appeals of Santiago of November 18, 1992.
7 The original in Spanish states as follows: "Los tribunales de justicia no podrán, en caso alguno, entrar a calificar los fundamentos ni las circunstancias de hecho invocadas por la autoridad para adopter las medidas en el ejercicio de las facultades excepcionales que le confiere esta Constitución."
8 In view of the fact that international human rights treaties have become part of the Chilean Constitution, it could be asserted that the above mentioned domestic provisions regarding States of Exception have automatically been derogated. So far, however, this issue has not been brought before a tribunal and this paradoxical situation persists. 9 According to art.70-A of the Military Code, in cases under military jurisdiction, the Legal Counsel of the Army integrates the Supreme Court, regardless the presence of militaries or civilians among the parties to the process.
10 Additionally, there was a third charge for which Mr. Palamara was convicted by the military tribunal but later declared innocent by the Martial Court and the Supreme Court. This charge was for publicly criticizing the Navy in connection with the prohibition to publish the book, despite a warning to not to make public such criticism.
11 The original in Spanish reads as follows:
"Igualmente estará prohibido publicar, directa o indirectamente, artículos que se refieran a asuntos de carácter secreto, reservado o confidencial, temas políticos o religiosos u otros que puedan dar margen a una polémica o controversia en la cual se pueda ver envuelto el buen nombre de la institución.
"Teniendo en cuenta las anteriores restricciones, el personal de la Armada podrá hacer publicaciones a la prensa, a título personal, previo conocimiento y autorización de su Comandante o de la Autoridad Naval competente.
"En tiempo de guerra o cuando las circunstancias así lo exijan, la Comandancia en Jefe de la Armada podrá suspender o limiter esta autorización."
13 In Chilean, as in most Latin American legislations, "desacato" means contempt or libel against any State authority.
14 Newspaper "La Prensa Austral", May 7, 1993.
15 See Inter-American Commision of Human Rights, Report on the Compatibility of "Desacato Laws" with the American Convention on Human Rights (Annual Report 1994) OEA/Ser.L/V/II. 88, Doc. 9 rev., 17 February 1995 at 197.
16 The General Comptrollership of the Republic (Contraloría General de la República) is an organ of the Executive Branch which determines whether or not Executive decrees and regulations are in accordance with the law. Regarding causes for confidentiality, see, for instance, Dictamen No 50.907 of 1978, Dictamen No 30.790 of 1989, Dictamen No 28.977 of 1993, and Dictamen No 20.680 of 1994.
17 For instance, the military regime created a new crime against the public order, consisting in "promoting or convoking public and collective demonstrations without authorization, and promoting or inciting to demonstrations of any other nature that permit or facilitate the disturbance of the public tranquility." The penalty was up to-five years (up to 20 years in time of War). According to this legislation, the Regime punished those who acted without authorization. It has to be noted that by that time the Government had an absolute discretion on whether or not to issue permits and, in fact, to the date of the establishment of this act as a crime, a permit for a demonstration for the Opposition had been issued on only one occasion. Concerning the disturbance of public tranquility, through this provision the Government was trying to make its opponents responsible for the violence that they themselves were victims of during the demonstrations, coming from military and paramilitary groups.
18 Against Jose Antonio Gómez, Revista de Derecho y Jurisprudencia, T.LXIX, 2a p., Secc. 4a, pp.4 ss. Jose Antonio Gómez was the director of the leftist newspaper "Puro Chile." The process against him took place prior to the military regime. This jurisprudence has been reaffirmed on many occasions.
19 Against Carlos Altamirano, Revista de Derecho y Jurisprudencia, T.LXV, 2a. parte, sección 4a, 9 ss. See also Revista de Derecho y Jurisprudencia, T.LXIV, 2a parte, sección 4a, 272 ss.
20 "Incumbe al legislador, que dicta la ley, y no al juez, que se limita a aplicarla, precaver que aquella garantía no sea desvirtuada injustificadamente."
21 See Revista de Derecho y Jurisprudencia T.LXIV, 2a parte, secc. 4a, 266 ss., and T.LXV, 2a parte, secc. 4a, 95 ss.
22 See Revista de Derecho y Jurisprudencia T.LXVI, 2a parte, secc. 4a, 302 ss.
23 Mr. Díaz words in Spanish were as follows: "Pretenden que ahora hagamos el servicio militar teniendo al mismo anciano, ex-dictador, como Comandante en Jefe de las Fuerzas Armadas."
24 For a more detailed revision of the jurisprudence on national security and public order in Chile, see González, Mera and Vargas, Protección Democrática de la Seguridad Interior: Estados de Excepción y Derecho Penal Político (cit).
25 Under the current Constitution, the Executive does not have the power to remove the Commanders in Chief of the Armed Forces and of Carabineros, a legacy of the military regime.
26 In Spanish, "Yo le pregunto a cualquier carabinero de Chile si está en condiciones de cumplir una orden emanada del general Stange, corriendo el riesgo, como lo han corrido otros, de enfrentar cadena perpetua."
27 It has to be noted that no charges against General Stange were issued in the end. However, attorney Salazar's statement was made while the situation of Gen. Stange was uncertain. Gen. Stange resign about a year later, making clear that this was his decision and that he was not following a governmental order.