Guatemala: The Temptation to Use the State of Emergency to Silence Critics and Criminalize "Fake News"

If Guatemala were a country—like a few others in Latin America—that had an adequate social security and public health system, perhaps the facts themselves, as reported in the news, would not be so alarming. If there were a commitment to transparency, accountability, and proper data management during the pandemic, perhaps the government itself would not be causing so much confusion with the information it provides. But the systemic failure of the country’s public health system is already becoming apparent, as is the authorities’ limited or nonexistent capacity to manage the crisis and disseminate information appropriately, along with the additional underlying conditions that make Guatemala particularly vulnerable to the pandemic.

Guatemala: The Temptation to Use the Emergency to Silence Critics and Criminalize “Fake News” It is clear that extraordinary circumstances, such as a pandemic, call for extraordinary measures. And declarations of constitutional states of emergency—such as so-called states of alarm or emergency—are of that nature, or at least should be considered as such. In the specific case of Guatemala, the constitutional state of exception adopted is known as a state of public calamity (the specific effects of which took effect on March 17, 2020). It is true that both the universal system for the protection of human rights contained, among others, in the International Covenant on Civil and Political Rights (ICCPR, Art. 4), as well as the inter-American system—developed primarily through the American Convention on Human Rights (ACHR, Art. 27), permit so-called temporary and proportionate “states of emergency,” but it is important to clarify that these in no way imply discretion in the exercise of power to act outside the law, much less without any oversight whatsoever. As Joaquín Urías rightly points out, “_The most bizarre and, at the same time, most dangerous provisions of the Constitution are those that provide for the possibility of suspending the constitutional order. They are often justified under the guise of ‘defending the Constitution’ through an ideological sleight of hand—namely, the notion that sometimes the Constitution must suspend its own application to defend itself against a threat. Behind this line of reasoning lies, for many, the suspicion—or the conviction—that democracy is not the best system for dealing with a crisis. This nostalgia for dictatorships is a simplistic approach.” _(Blog Al Revés y al Derecho, “State of Emergency and Limitation of Rights: Neither Exception Nor Suspension,” April 14, 2020). This quote is particularly relevant given that in several countries in Latin America—or rather, across the Americas—we have seen precisely how a longing for dictatorship is surfacing. In Guatemala, certain actions by the president have already drawn the attention of the Inter-American Commission on Human Rights (IACHR) and its Special Rapporteur on Freedom of Expression (RELE) (report dated April 18, 2020). For example, it has been reported that a group of journalists has publicly denounced being discredited by the President and other officials; they also reported that online channels for asking questions about the response to COVID-19 had been restricted. And beginning in April, presidential decrees regularly issued under the State of Public Calamity have included a warning to the media: “Pursuant to the Public Order Law, advertising agencies, media outlets, and broadcasters are required to avoid publications that may cause confusion or panic or exacerbate the situation, and to assume the responsibilities arising therefrom.” (“the warning,” hereinafter). The verb “avoid” used in this presidential provision entails an obligation of “not to act,” that is, it imposes a duty of omission, under penalty of incurring the corresponding legal liabilities, which may even be of a criminal nature (the offense of violating public health measures, Art. 305 of the Penal Code, for example). This warning against engaging in certain conduct (such as publishing a news story or an opinion that is alarming or causes confusion, for example) is a subtle threat to the free expression of thought and information which, for the reasons explained below, even amounts to a threat of prior censorship. But before that, it seems relevant to mention some “constitutional curiosities or paradoxes.” The Political Constitution of the Republic of Guatemala (CPRG) allows for the temporary limitation of certain, very narrowly defined constitutional rights (Art. 138). Among the eight (8) rights included, the first paragraph of Article 35 of said Constitution—which is the article recognizing the freedom of expression—is expressly listed. However, the first paragraph of the aforementioned Article 35 itself establishes the following: “Freedom of expression is guaranteed through any means of dissemination, without censorship or prior licensing. This constitutional right may not be restricted by law or by any provision whatsoever”… (emphasis added). For its part, Guatemala’s Public Order Law (Decree No. 7)—a law dating from 1965 that provides a more comprehensive framework for declaring temporary states of constitutional emergency—contains an outdated provision in Article 35, which literally states: “For the duration of any state of emergency, media outlets are required to avoid publications that may cause confusion or panic or aggravate the situation. In such cases, as well as if they report on the circumstances in a biased manner, the editor-in-chief shall be reprimanded by the respective authority; and in the event of a repeat offense, prior censorship may be imposed on the media outlet in question.” For some constitutional scholars, there is a possibility of contradictions within the Constitution itself—that is, potential constitutional antinomies. Could it be argued that there is an antinomy in the CPRG in that it both permits the restriction of freedom of expression in cases of constitutional exception (Art. 138) and the constitutional declaration that such freedom cannot be restricted by any law or provision (Art. 35), without making any exceptions? If this answer is interpreted under the “pro hominem” principle and, furthermore, in accordance with the guidelines that the Inter-American Court of Human Rights has established regarding freedom of expression, then the impossibility of imposing any restrictions on that freedom should prevail, and therefore freedom of expression should not be one of the fundamental rights that can be temporarily and proportionately limited or suspended during a state of alarm or calamity. And if the position that freedom of expression cannot be limited in any way—much less through systems of censorship—is indeed upheld, then another curious fact emerges: the unconstitutionality of a provision contained in a law of constitutional rank. I am referring to the complete incompatibility of Article 35 of the Public Order Law with the system for the protection of human rights. Finally, the warning contained in the presidential provisions—highlighted in bold at the beginning, and which was evidently “inspired” by Article 35 of the Public Order Law—did not go so far as to explicitly warn of the imposition of prior censorship in an open and explicit manner, since this is the very least that a President and his advisors must know in the 21st century: that any form of prior censorship is strictly prohibited under the international system for the protection of human rights—a prohibition that has become binding constitutional law in Guatemala as a result, not only the relevant rulings of the Inter-American Court of Human Rights but also rulings by the country’s own Constitutional Court, which have established case law to that effect. However, the warning still encourages a form of censorship—self-censorship—by suggesting that publishing or commenting on news that could cause confusion may lead to legal proceedings against those who produce or disseminate it, in order to determine liability (which, as already mentioned, can extend to criminal charges). If Guatemala were a country—like a few others in Latin America—that had an adequate social security and public health system, perhaps the events themselves, as news stories, would not be so alarming. If there were a commitment to transparency, accountability, and the proper handling of data during a pandemic, perhaps the government itself would not be causing so much confusion with the information it provides. But the systemic failure of the country’s public health system is already becoming apparent, as is the authorities’ limited or nonexistent capacity to manage the crisis and disseminate information properly, along with the additional underlying conditions that make Guatemala a country particularly vulnerable to the pandemic. Publishing any news story that reflects our chronic institutional weakness—especially in public health—and the government’s incompetence, which exacerbates the situation (and is further compounded by possible cases of corruption), thus becomes a story that can cause confusion for anyone even moderately concerned about what is happening. Hence, a “threat” could come from some government entity instructing a media outlet to refrain from continuing to publish stories such as those that have appeared in its coverage, under penalty of legal consequences for failing to do so. The President, so far, has not exercised this “power,” despite or notwithstanding his warning (it is well known that the President does not have a natural affinity for journalists). There is one known isolated case involving the former Presidential Communications Secretary, who warned a radio station that a news story it had broadcast was alarmist and false and publicly reprimanded the station (Sonora), promptly deleting the critical tweet. By Álvaro Castellanos Howell Photo Credit: @mpbasham