March 4, 1999
His Excellency Ernesto Pérez Balladares
President of Panama
Presidential Palace
Panama City, Panama
Your Excellency,
Prompted by a sharp increase in prosecutions of Panamanian journalists, the Committee to Protect Journalists (CPJ) is writing to strongly condemn Panama’s “gag laws” as a threat to press freedom, a violation of international law, and a blemish on Panama’s democratic development. We urge you to fulfill your often-stated promise to work for the repeal of the gag laws, which establish prison terms for defamation, permit prior censorship, grant the government the right to regulate who may practice journalism, and criminalize criticism of the president and other government officials.
The fact that such laws are still on the books in Panama is of grave concern; even more alarming is that a democratically elected head of state would use such statutes to stifle public debate and punish journalists who, in the legitimate exercise of their profession, criticize his administration. In one egregious example last December 28, three officers from the Technical Judicial Police raided the offices of the Panama City daily La Prensa and attempted to arrest investigative reporter Herasto Reyes on charges of defaming Your Excellency. In a show of support, journalists at La Prensa surrounded Reyes, preventing the police from delivering the warrant. After a tense confrontation, the police departed, leaving the warrant behind.
This police action stemmed from an article, published in La Prensa on August 27, in which Reyes interviewed José Renán Esquivel, the former director of the Social Security Fund (CSS). Reyes quoted Renán Esquivel as saying that Your Excellency was involved in a financial scandal relating to a CSS housing program in 1982, while serving as minister of finance. On August 28, you filed criminal defamation charges against Renán Esquivel and “any other person who might turn out to have been involved.” The attorney general’s office also opened an investigation of Reyes. On December 28, Prosecutor Javier Chérigo issued a warrant for Reyes’ arrest, leading to the raid on La Prensa‘s offices. Subsequently, Reyes was barred from leaving the country to cover the peace process in neighboring Colombia.
The attempt to arrest Reyes was not an isolated incident; in fact, according to local press reports, at least 85 journalists in Panama are currently being prosecuted for defamation. Panamanian journalists report that the rate of prosecutions has accelerated since August 30, 1998, when a public referendum on amending the constitution to allow a sitting president to seek a second term was defeated. Among the many criminal defamation cases we have documented since you took office in September 1994 are the following:
On November 2, 1995, you filed criminal defamation charges against María Cristina Ozores, then editor of the daily La Estrella de Panamá. Ozores’ alleged offense was publishing an editorial in which she reported that you were prohibiting government agencies from advertising in La Estrella de Panamá, in retaliation for that paper’s independent stance. Later that month, you withdrew the charges.
On January 21, 1998, Attorney General José Antonio Sossa initiated criminal proceedings against Gustavo Gorriti and Rolando Rodríguez, associate editor and reporter at La Prensa, for falsification of documents, refusal to disclose the source of a story, and defamation. The complaints stem from an article published in La Prensa in July 1996, which reported that a company accused of being a front for drug traffickers in Panama had made a US$5,000 contribution to Sossa’s re-election campaign for the legislature. After receiving a copy of the check, but before publishing their story, Gorriti and Rodríguez attempted to verify the authenticity of the document by interviewing Sossa. According to the journalists, Sossa spoke with them and promised to search his campaign records. At one point during the course of the proceedings against them, Gorriti and Rodríguez were ordered to appear before a judge once a month and were barred from leaving Panama. Ironically, in 1997 your government had taken the opposite tack, threatening to deport Gorriti, a Peruvian, from Panama. In August of that year, after Gorriti reported on a US$50,000 campaign contribution to your electoral campaign by a businessman linked to the Cali drug cartel, your government cited a provision of the gag laws that prohibits foreigners from holding senior management positions in the media. After sustained international protest, Gorriti received an extension of his work visa on October 15, 1997.
On February 19, 1998, Prosecutor Lisbeth Altafulla held a hearing on criminal defamation charges filed by National Police director José Luis Sosa against radio journalist and columnist Miguel Antonio Bernal. During a February 4, 1998, broadcast of the news program “TVN-Noticias,” Bernal said that the National Police were responsible for the death of four inmates at the Coiba Island prison who were decapitated by other prisoners. (Bernal is currently a candidate for mayor of Panama City.)
On December 10, 1998, Carlos Singares, former editor of the daily El Siglo, was declared guilty of defamation in a suit Your Excellency filed on July 9, 1993, when you were still a presidential candidate. You alleged that you were defamed in the newspaper article linking you to foreign bank accounts registered to Gen. Omar Torrijos. After Judge Enrique Paniza summarily dismissed the case against Singares, a second judge reinstated it on appeal. Judge Maria Lourdes Estrada ordered Singares to pay a US$1,800 fine.
On January 5, 1999, officers of a special force called the Police Information and Investigation Board attempted to arrest El Siglo reporters Blas Julio Rodríguez and Carmen Boyd Marciacq on defamation charges stemming from a December 1997 article about the sale of taxi licenses. The journalists refused to accompany the officer without a written warrant, arguing that they had already testified in the defamation case.
On February 18, 1999, Judge Raúl Olmos held a preliminary hearing in a criminal defamation proceedings against La Prensa reporter José Otero without notifying the defendant. The defamation charge was filed by a dentist, Samuel Osorio Caicedo, who Otero alleged in a series of articles was practicing without a license. Less than a week after the stories ran, the newspaper printed a correction.
On August 4, 1998, federal prosecutor Alma Montenegro de Fletcher filed a criminal defamation suit against El Siglo reporter Marcelino Rodríguez B. based on an August 3 article which reported that Montenegro de Fletcher had used her influence to acquire government housing in the former Panama Canal Zone. Montenegro de Fletcher denied the accusations. On September 30, Brittmarie Janson Pérez, a Panamanian anthropologist and contributor to various Panamanian dailies, published a column in El Siglo in which she acknowledged she was the source of Rodríguez B.’s story. According to a government edict published in the Panamanian press in late January, Janson Pérez (who is a U.S. resident) and El Siglo editor Michelle Lescure Guevara were added as defendants in the defamation suit. A preliminary hearing was set for February 11 but was later postponed.
As an organization of journalists dedicated to the defense of press freedom worldwide, CPJ believes that journalists should never be jailed for their journalistic work. CPJ has defended around the world its position that there should be adequate remedies available in the civil arena for those who feel they have been defamed. In 1997, CPJ joined an amicus brief on behalf of American journalist Ying Chan and Taiwan-based journalist Hsieh Chung-liang, who were prosecuted by the Taiwanese government for reporting on an attempt by an official of the ruling party to donate US$15 million to President Bill Clinton’s re-election campaign. The Taiwanese court accepted the argument in the brief and acquitted both journalists. Later that year, when New York Times reporters Sam Dillon and Craig Pyes faced prosecution in Mexico after they reported that the Drug Enforcement Agency was investigating two Mexican governors, CPJ sent a letter to President Ernesto Zedillo arguing that such prosecutions have a chilling effect. Mexico’s attorney general eventually dismissed the charges.
A functioning democracy depends on the free exchange of ideas. Thus, we believe a reporter’s good faith belief in the accuracy of the information published should be a sufficient shield against liability. In instances where a plaintiff can demonstrate malice on the part of a journalist -‹ in other words, that a journalist knew or should have known at the time of publication that the information in a story was inaccurate — civil litigation should provide adequate redress for the aggrieved party.
CPJ’s position is based on and supported by international law. Article 19 of the Universal Declaration of Human Rights states that, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.” This right is affirmed in Article 13 of the American Convention on Human Rights, which Panama ratified in 1978. Article 13 also affirms that any expression “shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law…” The Inter-American Court of Human Rights in San José, Costa Rica, has interpreted Article 13 to prohibit government licensing of journalists, a form of prior censorship.
The Inter-American Commission of Human Rights has also ruled that “contempt laws” (leyes de desacato) which criminalize criticism of public officials, violate “the most fundamental principle of a democratic system, which subjects the government to the scrutiny of citizens, so that abuse of power can be prevented or controlled.” As part of the resolution in the case of Verbitsky v. Argentina (case 11.012, 1995), the commission ruled that contempt laws violate the freedom of expression guarantees granted under inter-American law. The commission urged all countries to work toward their elimination. Panama has failed to comply with this recommendation.
CPJ firmly believes that journalists should have absolute liberty to report on government investigations, particularly those in which public officials are alleged to be involved in wrongdoing. An informed and robust public debate will inevitably expose government officials to caustic criticism. In a democratic society, politicians and public figures face greater scrutiny and have fewer legal protections than private citizens. Under the terms of Panama’s gag laws, the reverse is true.
The following provisions, all part of Panama’s gag laws, violate international standards, compromise Panama’s constitutional safeguards, and undermine the country’s commitment to democracy and the rule of law:
Under the penal code, adopted in 1982 under Gen. Rubén Darío Paredes and modified under Gen. Manuel Antonio Noriega in 1988, criminal defamation is punishable by up to two years in prison. Any journalist who “spreads false, exaggerated, or misleading news or propagates rumors” that endanger the national economy can be imprisoned for up to three years; the sentence can be doubled if the news leads to the devaluation of the national currency. Article 307 punishes any “offensive” criticism of the president with up to 10 months in prison. According to Article 202 of the judicial code, judges can order the detention of anyone who shows contempt or disrespect for the government. Meanwhile, Article 368 of the judicial code allows Public Ministry officials to order the detention on contempt charges of any person for up to six days, without the possibility of appeal.
Law 11, adopted in 1978 under Gen. Torrijos, authorizes prior censorship. Article 15 prohibits the publication of false news; false facts relating to a person’s private life; comments, references, and insinuations about a person’s physical handicaps; or the names of minors who have committed crimes or are in any way involved in criminal activity. Article 16 defines the punishment for such action as either a fine ranging from one hundred to US$1,000, or the closing down of the offending newspaper. Article 17 empowers the Ministry of Government and Justice to carry out the punishment without intervention from the judiciary.
Laws 67 and 68, also adopted under the Torrijos regime, grant the government the authority to license journalists. Under Law 67, a journalist’s “professional proficiency” must be certified by the Ministry of Government and Justice. Law 68 empowers the government to suspend any journalist who violates professional standards.
Decree 251, promulgated under a military govennment on August 6, 1969, permits prior censorship of any material deemed to be obscene, immoral, or offensive to “the basic principles of Christian morality.” The National Board of Censorship may also restrict materials “that make the moral texture of the media weaker, deforming the concept of human, moral, and family values,” or are “an instrument of propaganda for exotic theories and totalitarian systems that advocate the destruction of the democratic and republican system or that go against public order.” Censorship provisions have been used in at least three recent cases against the press: The National Board of Censorship fined Editora Panamá América S.A., the publishing house that owns the dailies El Panamá América and Crítica Libre, US$250,000 for publishing in the daily Crítica Libre a section called “The Girl of Crítica Libre” and the daily El Siglo for publishing a section called “A Present for You.” Both sections feature photographs of women in bathing suits. On February 22, 1999, the Ministry of Government and Justice suspended the licenses of three journalists for six months because they allegedly used vulgar language in violation of Decree 251.
On repeated occasions you have pledged to repeal the gag laws: On June 6, 1994, as president-elect, you said “we need to develop a consensus among all the media owners to overturn these laws with limit free expression.” In March 1997, during a meeting of the Inter American Press Association in Panama City, you promised to introduce legislation to decriminalize libel, and noted that the jailing of journalists was “inadmissible.”
We are dismayed, therefore, that you continue not only to tolerate the criminal prosecution of Panamanian journalists but also to initiate many such lawsuits. We have noted with great satisfaction that violence against journalists in Panama has largely disappeared under your administration. We believe that the Panamanian press has played a major role in strengthening democratic institutions. We urge you to work for the repeal of the gag laws and an end to criminal defamation, before the May 2 elections, so that your legacy will include a press that is not only liberated from the threat of violence, but also from unwarranted criminal prosecution.
Sincerely,
Ann K. Cooper
Executive Director
Join CPJ in Protesting Attacks on the Press in Panama
Send a letter to:
His Excellency Ernesto Pérez Balladares
President of Panama
Presidential Palace
Panama City, Panama
Fax: 011-507-227-0073 or 011-507-227-6818