To publish this resolution in the Annual Report of the
Inter-American Commission on Human Rights.
Approved by: Dr. César Sepúlveda
Dr. Luis Adolfo Siles
Dr. Gilda Russomano
Dr. Andrés Aguilar
Dr. Marco Gerardo Monroy Cabra
Dissenting vote by Dr. Bruce McColm, the text of which is included
as an appendix.
Dr. Luis Demetrio Tinoco Castro disqualified himself in this case.
THE DISSENT OF DR. BRUCE MCCOLM
ON CASE 9178 (Costa Rica)
For over three hundred years, a struggle has been fought in this
hemisphere for the fundamental right of people to speak, write, print
and now broadcast information, ideas and opinions freely, uncensored,
unfettered, unlicensed and unafraid. Although we live with
revolutionary new technologies and a growing awareness of our
interdependency, this struggle still confronts age-old adversaries.
The democratic project of our hemisphere, which shows steady success
in the growing number of representative governments, is still marred
in some countries by the unrestrained harassment, intimidation and
control of the media. Where the victory of free expression has been
won, there are new thinly disguised threats which challenge the
preservation of this rights. To not defend an imperilled right is
to forfeit it.
On June 3, 1983 at 4:30 p.m., the Third Chamber of the Supreme
Court of the Republic of Costa Rica reversed the decision of the
Second Penal Court and found Mr. Stephen Schmidt "guilty of the
criminal offense of the Illegal Exercise of the Profession of
Journalism, endangering the Public Order." For this alleged crime,
Mr. Schmidt was sentenced to three months in prison to be served
immediately upon the completion of the provisional detention.
Although the Court found him a man of impeccable character and
suspended the prison sentence, he was entered into the Judicial
Criminal Register, thereby branding him with a criminal record for
the rest of his life. As a consequence, Mr. Schmidt is permanently
prohibited from practicing his journalistic craft in Costa Rica, a
country where he did so with great distinction for 11 years.
Furthermore, the national courts have taken steps to prevent him from
pursuing his profession in Costa Rica on threat that he would be
judged a habitual convict and thus be declared a dangerous person.
Technically, Mr. Schmidt should never have been tried.
According to Article 23 of Law No.4420, known as the Organic Law of
the College of Journalists of Costa Rica, a journalist is "one whose
main, regular or
salaried occupation is the exercise of his profession for a daily or
periodical publication, or in the televised or radio broadcast news
media, or for a news agency, from which he earns the major portion
of his living." (Emphasis added)
While residing in Costa Rica, he worked for the English-language
weekly The Tico Times as "technical consultant, translator and style
editor" and occasionally wrote articles on various national and
international topics for The Tico Times and La Nacion, both of which
are based in San Jose. During the trial before the Second Penal
Court of San Jose, it was established that Mr. Schmidt earned his
primary living as a commodities analyst. Under cross-examination,
both the personnel manager of La Nacion, Alvaro Mora and Saul Arias,
The Tico Times accountant, testified that Schmidt did not earn a
salary at either newspaper as a reporter.
Presiding Judge Jeanette Sanchez, while calling Mr.Schmidt "a
born journalist", said: "In a legal sense, if we base ourselves on
the Colegio de Periodista law, Mr. Schmidt is not a journalist,
because he does not fulfill the formal requisite of making this
activity his principal means of livelihood."
However, despite the manifest deficiencies in the legal
definition of a journalist, to which I will return, there exist a
group of activities which both experience and common sense tell us
are journalistic in nature. Whether Stephen Schmidt is a good, bad
or indifferent journalist is irrelevant in ascertaining whether Law
No. 4420 is in conflict with Article 13 of the American Convention
of Human Rights. However, it is important background for considering
the Colegio's claim that one of its primary tasks, according to its
former President Carlos Morales, "is to protect society from the harm
that unlicensed journalists can do."
By all and any reasonable criteria, Mr. Stephen Schmidt has
demonstrated his ample ability and qualifications to practice
journalism. The collection of his writings submitted to the
Commission demonstrate a wide-range of subjects and issues of public
importance on which Mr. Schmidt brought his unusual sensitivity,
specialist's knowledge in economics and respect for his adopted
country.
In 1977, the judge, who ruled against the government of Costa
Rica in its law suit against Mr. Schmidt for his series of articles
on land reform, praised not only his ability but also his public
service in bringing critical issues before the attention of the
citizenry. At no time, during the proceedings before the Commission,
were the talents and qualifications of Mr. Schmidt doubted. In fact,
the representatives of the government of Costa Rica said that Mr.
Schmidt's writings in no way threatened the public order, the rights
or reputation of others, national security or public health and
morale.
At the suggestion of the Colegio de Periodistas, Mr. Schmidt
enrolled in the Autonomous University of Central America and under
the Director of the newspaper La Nacion, Lic. Guido Fernandez,
earned a graduate degree with honors in interpretative journalism.
During this time, Alvador Madrigal, an officer of the Colegio, signed
a letter authorizing Schmidt to continue his journalism work as a
student and invited him to join the Colegio upon graduation. His
licencia was authenticated by both the Ministry of Education and the
Colegio de Periodistas.
However, Mr. Schmidt's graduating class was not allowed to join
the Colegio since the organization refused to recognize degrees from
the Autonomous University. This occurred despite legislation
ordering professional associations to revise their statutes to admit
graduates of private universities.
On January 14, 1983, the Second Penal Court of San Jose handed
down a sentence declaring Mr. Schmidt innocent and absolving him of
all guilt and responsibility. Judge Jeanette Sanchez' decision was
the first time the Universal Declaration of Human Rights and the
American Convention of Human Rights have been used as a basis for a
court decision in our hemisphere. As the first country to ratify the
American Convention on Human Rights, known as the San Jose Pact, the
court acknowledged that its treaty obligations took precedence over
domestic legislation.
In so ruling, Lcda. Jeannette Sanchez made a distinction between
the journalist profession as a discipline that inherently involves
a fundamental human right and other professions regulated by
colegios. Since journalism involves exercising the fundamental right
of expression, the governing covenants, statutes or treaties in this
case are the American Convention of Human Rights, the Costa Rican
Magna Carta and the constitutional guarantees of basic liberties.
Consequently, Judge Sanchez argued:
There is no doubt that in journalistic activity there
exists an essential difference from the other professions. It
is the only one among them in which the practice and discipline
directly affects a basic rights of human beings: freedom of
opinion and expression, which of necessity requires the
possibility to exercise that freedom. Our country subscribed
to, and later promoted to a law higher than other laws, the
Universal Declaration of Human Rights, as provided for in
Article 7 of the Political Constitution. Article 19 of Law
4229, dated December 11, 1968, states: 'Every individual has
the right to freedom of opinion and expression: this right
includes that of not being harassed because of one's opinions,
of investigating and receiving information and opinions and
disseminating them, without limitation by frontiers, through any
medium of expression."
In the same manner, the American Convention on Human Rights
was signed, being integrated into our legal principles through
Law No.4534, dated February 13, 1970. Article 13, Section 1),
states: 'every individual has the right to freedom of thought
and of receiving and disseminating information and ideas of any
kind, without consideration of frontiers, whether orally, in
writing or in printed or artistic form, or through any other
procedure of his choosing"; and paragraph 3) adds: 'The right
of expression must not be restricted by indirect methods or
means, such as the abuse of official or private control of paper
for newspapers, radio frequencies, or of equipment and apparatus
used in the diffusion of information or through any other means
designed to obstruct the communication and circulation of ideas
and opinions."
Our Magna Carta, in Article 7, stipulates, in Paragraph 2:
"Public treaties, international agreements and concords duly
approved by the Legislative Assembly, shall from time of their
acceptance have authority higher than of the laws."
Applying the above to the concrete case, we see that
Stephen Schmidt "was seeking out, receiving or disseminating
information...in written form." His conduct therefore
corresponds with the exercise of what may be called that higher
right, which is freedom of expression, as stated, must not be
restricted by any indirect means. The foregoing demonstrations
that the legal nature of a College of Journalists cannot be the
same as is essential to other professional colleges, since in
the former activity use is made of one of the most precious
public freedoms of human beings, that is, to express their
thoughts. The accused, then, acted in the legitimate exercise
of these rights..."
In June 3, l983 the Supreme Court reversed the judgment of the
Second Penal Court and annulled the acquittal. The Court's Judgment
was based on a perceived threat that upholding the decision would
undermine the various laws of the different professional Colleges,
since membership in each of these corporations would not be
indispensable. The justices argued:
The Organic Laws of the various Professional Colleges
establish absolute prohibitions for the exercise of the
profession to persons who do not have the pertinent title; and
fundamentally, 'if it is true that the Colleges were established
and organized for the protection of their members, there is
another fact of special importance in such cases, which is the
public interest involved in the general exercise of the
professions, which interest serves as a legitimate reason for
the protectionist intervention of the State in view of the
necessity for such activities to be performed by highly
qualified persons, that is, those with abilities derived from
university studies and the professional titles obtained in the
manner stipulated in the law or regulations... (Jurisprudencia
Constitucional l979-82, pp. l39 ff.).
It is a sociological fact of life professional associations
perform a vital role in the maintenance of ethical and professional
standards in this hemisphere. These associations, as my esteemed
colleague Dr. Monroy Cabra points out, stem from the exercise of the
right of free association and the safeguarding through collective
effort the integrity and standards of one's vocation. To the degree
they fulfill these functions, professional associations serve to
enhance the well-being of their members and, as a consequence, that
of their fellow citizens.
The public interest, as a priority of the associations, is
embodied in the strict observance of the standards of professional
ethics, both because of the importance of the activity itself and
because of the confidence that the community must have in those who
exercise this activity. It is naturally in the interest of the State
to see that the exercise of the professions is efficaciously
performed as a guarantee for the entire community. For that reason,
the State delegates to the association in our societies the authority
to ensure the proper exercise of the profession. In principle, these
professional associations are non-governmental public interest
institutions. Generally, the public interest is served in this
regard and there is no undermining of the freedom of association.
However, by that very nature professional associations lack a
certain public interest insofar as there exists a certain degree of
dominance by private interests, whether individuals or groups. While
these associations may act in the interest of their members, that is
no guarantee that such actions are in the interest of the society at
large. By no means can the public interest be invested in any one
of these groups or any other private organization.
It is natural then for both the Supreme Court of Costa Rica and
the Commission to rule that there is no direct conflict between
Article 13 of the American Convention and the Organic Law of the
College of Journalists. In most freedom of expression cases in this
hemisphere there exists a presumption of constitutionality of
government action. Normally, the Court as in this case, starts with
the presumption that a legislative action is constitutional. If
there is a reasonable argument that the law serves a purpose within
the legislature's mandate, it is rare for any court to challenge it.
The Court will generally avoid any ruling on a challenged piece of
legislation by adopting, as is the case here, an alternative
interpretation of the case. This inevitably leads to the Court
deciding a case on the narrowest of grounds.
In this case, it is unfortunate because the two court decisions
and argumentations are so diametrically opposed to one another's that
there exists no well-defined legislative or legal standards to
adjudicate between the right of the Colegio de Periodistas to exist
and perform its social functions and the claims by an individual to
exercise his most fundamental rights.
In Schneider v. Irvington, American Supreme Court Justice Owen
Roberts in 1939 admonished the lower courts in the United States to
follow the following principle:
"Where legislative abridgment of the rights is asserted, the
courts should be astute to examine the effect of the challenged
legislation. Mere legislative preferences...may well support
regulation directed at other personal activities, but be
insufficient to justify such as diminishes the exercise of
rights so vital to the maintenance of democratic institutions."
This case deserves a more definitive resolution and an
establishment of legal standards to say where the individual's
freedom ends and the State's or a designated agency of the state's
power begins. Since the Commission accepted Stephen Schmidt's
petition on October 4, 1983, litigation has begun in Bolivia and the
Dominican Republic challenging those countries' licensing laws.
Controls in these countries as well as Costa Rica now parallel similar
laws in Brazil, Colombia, Ecuador, Haiti, Panama, Peru and Venezuela.
These laws are unusual in the wide array of press controls in this
hemisphere because they are supported in many instances by reporters
and broadcasters in the country. This happens to be the case here.
The hemispheric debate over media control has heated up and will
continue to be acrimonious until the inter-American system
established clear guidelines on where and when fundamental human
rights are being trampled on and when and how professional standards
are being upheld.
Crucial to this debate is whether Judge Jeanette Sanchez'
distinction between journalism and other professions is valid. If
journalism is a profession which inherently involves the exercise of
a fundamental human right, then no government or government-approved
agency is entitled to prevent an individual from being a journalist.
Conversely, do journalists become a special class of persons, not
subject to the full exercise of their rights, when they receive
monetary compensation for their work? And, if journalists can be
subjected to the same obligatory membership or authorization by a
government-approved and mandate professional organizations as
practitioners of other professions, what constitutes a journalist?
These may seem trivial questions to the laymen and lawyer alike.
After all, as pointed out above, common sense and experience allow
us to make a judgment about what constitutes a journalistic activity.
However, attempts such as the Organic Law of the College of
Journalists to codify such definitions into law are inevitably doomed
to fail. As indicated during the trial before the Second Penal
Court, those not subject to the authorization of the Colegio were
specifically spelled out--columnists and free-lance journalists, for
example. Those subjected to the authority of the Colegio were
defined purely in terms of their socio-economic position in the
business of journalism and not according to the performance of any
concrete activities, which one could properly call journalism.
In a telling exchange during the trial, Attorney Ricardo
Harbottle, representing the Colegio, attempted to establish that Mr.
Schmidt was practicing journalism in his writings. Questioning
Schmidt's professor, Lic. Guido Fernandez, about the nature of an
article about a trip down the Reventazon River, Attorney Harbottle
maintained the article was "reportaje" and therefore Schmidt was a
journalist. Lic. Fernandez maintained that the story was a
"chronica" and therefore could be classified as commentary, which
would be outside the jurisdiction of the Colegio. On other occasions
during the trial, the prosecution tried to establish that the act of
taking notes at a press conference qualified as a journalistic
activity, regardless of what one did with those notes, and that
interviewing public figures was also a journalistic act. What was
unclear in all this was whether an individual could commit a
"journalistic act" without being considered a journalist. At a
meeting at the UNESCO headquarters in Paris in l980, both the
International Federation of Journalists and the International
Organization of Journalists adopted, in a protocol approved by both
organizations, the following definition:
This profession of journalism consists in seeking out,
receiving or communicating information and opinions destined for
daily publications, press agencies, information services, etc."
Article l9 of Universal Declaration of Human Rights (December
l0, l948), Article 4 of the American Declaration on the Rights and
Duties of Man, Article l9 of the International Pact on Civil and
Political Rights and Article l3 of the American Human Rights
Convention all regulate what we have come to call the right to
information, which includes seeking out, receiving and disseminating
information and ideas with no prior censorship in any media. This
right is also affirmed in Article 29 of the Political Constitution
of Costa Rica, which declares:
"Every individual may communicate his thoughts in oral or
written form and publish them without prior censorship; but they
will be responsible for any abuses that they commit in
exercising this right, in such cases and in such manner as
established by law."
Therefore, as Judge Jeanette Sanchez rightly ruled, the
substance and nature proper to the exercise of the profession of
journalism coincides totally and absolutely with the spirit and
letter of Article l3 of the American Human Rights Convention with
regard to the expression and communication of thought. The proper
exercise of the fundamental freedoms expressed in Article l3
reinforces the security of individuals and the just requirements of
the general good as expressed in Article 32 of the American
Convention in such a way as to consolidate democratic institutions
by preventing the shackling of freedoms by the government or any
other agency within the society.
A free and unimpeded press contributes handily to the ideals of
the American Convention to "consolidate on this continent, within the
framework of the democratic institutions, a format of personal
freedom and social justice based on respect for the essential rights of man."
American Supreme Court Justice Powell, dissenting in Saxbe v.
Washington Post (4l7 U.S. 843) (l974), eloquently described the
fundamental role the press plays in a democratic society:
An informed public depends on accurate and effective
reporting by the news media. No individual can obtain for
himself the information needed for the intelligent discharge of
his political responsibilities. For most citizens the prospect
of personal familiarity with newsworthy events is hopelessly
unrealistic. In seeking out the news the press therefore acts
as an agent of the public at large. It is the means by which
people secure that free flow of information and ideas essential
to the intelligent self-government. By enabling the public to
assert meaningful control over the political process, the press
performs a crucial function in effecting the social purpose of
the First Amendment (of the Constitution of the United States.)"
Because the practice of journalism is so intertwined with the
exercise of the freedom of expression as guaranteed by the
conventions mentioned above, it is fundamentally different in nature
from the legal or medical professions. In the professional exercise
of medicine or law, for example, official control exists due to the
risks created by an uninformed practitioner, who might eventually
harm a third party. In the case of journalism, the risk is of an
opposite kind. When a journalist or press organ is bound by prior
permission or license by a government-approved or santioned body,
there brings with such regulations a serious and dangerous limitation
of a right that is inalienable.
As James Madison warned:
"A Popular Government, without popular information, or the means
of acquiring it, is but a Prologue to a Farce or Tragedy; or,
perhaps both. Knowledge will forever govern ignorance. And a
people who mean to be their own governors, must arms themselves
with the power which gives." (To W.T. Baray, August 4, 1822).
The necessary distinction between journalism and other
professions was made by Lic. Guido Fernandez in La Nacion (October
27, l979), when he wrote:
"The preparation of journalists, their competence as
communicators and their independence of thought in regard to
their employers, does not necessarily depend on the existence
of professional guilds, and even less on permits issued by the
government or by syndical associations. The university centers
should be responsible for their solid background of knowledge,
and the publications themselves for the broadness and maturity
of their experience. If the universities are bad, then not even
the most closed and medieval guild will be able to make
journalists more dependable or more efficient or more
independent.
The lawyer, the doctor, the chemist or the engineer do not
exercise professions which involve a basic human right such as
freedom of expression or of information. Public faith, public
health and public safety are individual or social values which
demand guardianship, but the tasks of informing and expressing
opinions are activities so intimately associated with all human
beings that any restriction or limitation could endanger (if not
destroy) that which is the essence of democracy: the right to
dissent."
This does not mean that a journalist is judged in a superior or
special category of citizenship. The criteria for the maintenance
and regulation of the professional standards and integrity of
journalism come not from the laws of a professional organization but
are derived from a series of wide-ranging legislation in our
countries governing the media as a whole. This body of legislation
in each of our countries is more than adequate to prevent any abuse
of the journalist profession.
Dr. Monroy Cabra argues that Article 13 of the American
Convention of Human Rights which establishes the internal
responsibility for guaranteeing: a) respect for the rights and
reputation of others, and b) protection of national security, public
order and public health and morals implies that while the press is
free, it must conform with the law in these cases. This is correct
as far as it goes.
Since Article 13 deals with a public exercise of a fundamental
right and journalists are the habitual practitioners of that right,
journalism is therefore already regulated by laws governing the
public exercise of the freedom of expression. There exists, in fact,
an alternative legal mechanism in our republics to control
unprofessional conduct of journalists without limiting the freedom
of the press and ultimately hurting the public more. In the case of
Costa Rica, the basic laws affecting the media are the Constitution
of l949; the Press Law of l902; the Radio Law of l954, which was
later amended for television, and the law presently being discussed.
The Constitution contains a series of exceptions to freedom of
expression such as the aforementioned restrictions contained in
Article 13.
The Press Law provides for prison sentences of up to six months
for the defamation of character. An offense to someone's honor may
call for a retraction in the press. It also makes punishable the
intentional subversion of friendly relations with another nation.
A related law establishes a censorship board through the Ministry of
Interior, which requires the screening of all printed and graphic
material consisting of "obscene or pornographic texts...the
dissemination of antisocial customs, and the presentation of scenes
which may lead to vice, criminality, sexual aberrations, and the use
of drugs or which are contrary to the country's social values." The
laws governing the electronic media are similar in scope, governing
many of the prohibitions against libel and defamation of character.
As made clear in the preamble to the American Convention, these
essential rights of man "are not derived from one's being a national
of a certain state, but are based upon attributes of the human
personality and that they therefore justify international protection"
and, therefore, every individual...with no discrimination for reasons
of...political opinion or any other kind..."is entitled to the free
and full exercise of these rights, which include freedom of
expression. It is clear that the freedom of expression is guaranteed
to all human beings, without exception, and can not be the exclusive
reserve of any single group of individuals, state-approved
organization and/or public agency of the government. It is a right
that belongs to everyone.
The Organic Law of the College of Journalists as presently
constituted and applied represents an attempt to define a "right to
communicate". This would qualify and limit the aforementioned
international covenants that guarantee the freedom of expression.
To specify who should have this right and under what conditions is
itself a restriction of what is universally entitled to everyone.
Therefore, the limitation created by denying the right to practice
journalism to those who do not enjoy the approval of the Colegio de
Periodistas since they are not members, or to deny them in advance
the right to disseminate information or ideas without permission or
prior authorization, is a violation of Article l3 of the American
Convention. The fact that an individual exercises his freedom of
expression gratis or for a salary is irrelevant to the discussion.
In a communication to the Commission dated May l5, l984, the
Government of Costa Rica maintained that Mr. Stephen Schmidt was
convicted "...not for expressing his thoughts or for publishing
information or ideas but because the Court found him to be guilty of
illegally exercising the profession of journalism and putting the
order at risk..." As has been made clear, Mr. Stephen Schmidt at no
time violated those laws regulating the press that covered the
conventional limitations on the freedom of expression. Nor, did he
ever challenge the public order. The substance of Mr. Schmidt's
alleged crime is that he published information and ideas in a printed
form without prior authorization or permission of the Board of
Directors of a public corporation. Members of this public
corporation, the Colegio de Periodistas, have through legislative
approval been given the exclusive monopoly to practice journalism in
Costa Rica. This monopoly constitutes a form of prior restraint on
the journalists.
Proponents of the New World Information Order have argued that
the licensing of journalists would elevate the standards of reporting
and also would be a means to protect correspondents in dangerous
situations. The decision by the Supreme Court of Costa Rica to
convict Stephen Schmidt was seen by the local Colegio as formally
recognizing the licensing of journalists and a recognition that the
profession was "of limited access."
However, UNESCO's International Commission for the Study of
Communication Problems concluded in l980 that such licensing would
open the door to restrictive governmental regulation. The Commission
concluded: "Although problems concerning the protection
of journalists are real and preoccupying, we share the anxiety
aroused by the prospect of licensing and consider that it contains
dangers to freedom of information."
Such an anxiety has been at the root of the nearly three and a
half centuries of legal history that lies behind Article l3's
discussion of "prior censorship". John Milton's classic defense of
free speech, the Areopagita, was itself a pamphlet printed in l644
to protest a number of licensing acts passed in Great Britain. Such
acts by the Crown required printers to have a license before
publishing. In the days of hand-presses, more often than not the
printer was also the journalist or pamphleteer. This strategy of
press repression, along with taxes on newsprint and newspapers, was
explicitly rejected in the American Constitution by the First
Amendment, which states: "Congress shall make no law...abridging
freedom of speech or of the press." The unconstitutionality of such
licensing, which the American courts referred to as "previous" or
"prior restraint" was decided upon as early as l825.
Shortly after Costa Rican independence from Spain, the new
government insisted on the creation of a vigorous and critical press.
In the early l830, the Government of Costa Rica passed a law that
became tradition in that country and paralleled American prohibitions
on "prior restraint". It stipulated:
"Liberty of thought and expression is so absolute that no
prior censorship, no regulation, no special or common tribunal
shall restrict it. Neither the very overthrow of the
constitutional order, armed rebellion nor civil war shall be a
motive to repress it."
As this case is the first in which the American Convention has
been invoked as domestic law, it is necessary to determine whether
and how the provisions of the Convention or the San Jose Pact have
become part of the State's own domestic law. In other words, are the
obligations undertaken by the Republic of Costa Rica on an
international plane transformed into obligations owed those
individuals within its own legal system?
While there exists a long-standing debate over the superiority
of international law over domestic statutes, in the case of Costa
Rica, this problem is easily answered. Some states provide in their
constitutions certain provisions of international law, which become
self-executing and are immediately enforceable by domestic courts.
Costa Rica has gone even further by not only making international law
self-executing, but assigning it to a rank superior to all prior and
subsequent legislation. Its Magna Carta in Article 7, Paragraph 1
stipulates: "Public treaties, international agreements and concords
duly approved by the Legislative Assembly, shall from the time of
their acceptance have authority higher than that of the laws." This
is again affirmed by virtue of a constitutional amendment approved
by Law No. 4123 on May 30, 1968.
Specifically regarding the American Human Rights Convention,
Costa Rica accepted and ratified it in its entirety and without
reserve, as approved by its Legislative Assembly under Law No. 4534
dated February 23, 1970. The law held that thereafter the Convention
would be the Law of the Republic "...upon whose observance the
National Honor depends."
Therefore, Judge Jeanette Sanchez of the Second Penal Court of
San Jose was quite proper in arguing that there was a direct conflict
between Article 13 of the Convention and Articles 22, 23, 24 and 25
of the Organic Law of the Colegio de Periodistas and that the
Convention was of superior weight to the act by the Legislative
Assembly. The Inter-American Commission, likewise, is competent to
decide if a law passed by the Legislative Assembly and a sentence
handed down by the Third Chamber of the Supreme Court of Justice are
or are not incompatible with a fully ratified ruling of international
Law.
Although the licensing of journalists by an exclusive
corporation is in direct conflict with Article l3 of the Convention,
that does not mean that a ruling to this effect would jeopardize the
existence of all professional associations in Costa Rica or even the
Colegio de Periodistas. Making the distinction between journalism
and other professions, the challenge to the present law comes where
there are unwarranted restrictions on the freedom of expression. In
the case of other professional associations, this is not a realistic
concern.
Since other countries are facing similar litigation over the
licensing issue and obligatory membership to press colegios, there
exist basic guidelines that would ensure no conflict with
international covenants protecting the freedom of expression. In
May, 1981, leaders of independent news organizations from 21
countries met in France and issued the Declaration of Talloires,
which provides a summary of proposals that are immediately applicable
to this hemisphere.
The purpose of these basic principles is to uphold individual
rights and deepened the commitment of journalist associations to the
consolidation of democratic institutions. The right of freedom of
expression as contained in Article l3 of the American Human Rights
Convention cannot be qualified by an attempt to develop a counter
right to communicate. This would severely limit access to persons
desiring to be journalists. Neither state-approved bodies nor
private agencies should have the legal power to restrict access, by
the people and press, to all sources of information, both official
and unofficial. Journalist associations must make sure that
censorship and other forms of arbitrary control of information and
opinion be avoided. Codes of journalistic ethics should be
formulated by the press itself and should be voluntary in its
application. They cannot be formulated, imposed or monitored by
government or governments agencies without becoming instruments of
press control.
There should be no restriction on any person's freedom to
practice journalism. Press freedom is a basic human right. As in
the case of Mr. Stephen Schmidt, fine journalists often come from
other disciplines. Journalists should be free to form organizations
to protect their professional interests. But these associations
should be inclusive, not exclusive and should not discriminate
against graduates of various educational institutions within a
country or abroad.
Licensing of journalists by any national bodies should not be
sanctioned, nor should special requirements be demanded of
journalists in lieu of licensing them. In addition, to legislate or
otherwise mandate responsibilities for the media is to destroy its
independence. The ultimate guarantor of journalistic responsibility
is the unfettered, free exchange of ideas. Consequently, members of
the media should enjoy the full protection of national and
international law without seeking special protection or any special
status.
As the late Alexander Meiklejohn wrote in "The First Amendment
is an Absolute" (1961 Sup. Ct. Reev. 245)," Public discussions,
together with the spreading of information and opinion bearing on
those issues, must have a freedom unabridged by our agents. Though
they govern us, in a deeper sense, govern them. Over our governing,
they have no power. Over their governing, we have sovereign power."
In the final analysis, the litmus test of whether Law No. 4420,
the Organic Law of the Colegio de Periodistas as well as Decree
43120, dated November 7, 1974 of Costa Rica, "constitute no
restriction of freedom of thought or expression", as my colleagues
have found, rests with the behavior of the Colegio in applying those
statutes. At issue is whether Law No. 4420 empowers the Colegio to
regulate only its membership or the entire free flow of information
in the country. Does the Colegio view its role as controlling all
aspects of Costa Rican society that are somehow information-related?
Prior to the trial and conviction of Mr. Schmidt, Mr. Joe
Phillips, an American with a journalism degree from the University
of Texas, was sued by the Colegio, convicted under Law No. 4420 and
given a suspended sentence in 1978. Considered one of the finest
practicing journalists in Costa Rica, Mr. Phillips founded the San
Jose News, an English-language weekly in 1973 and eventually was
forced to suspend publication in 1979 after he was convicted of the
same alleged crime as Mr. Schmidt.
Since Mr. Schmidt's conviction, according to the
English-language newspaper The Tico Times (February 17, 1984), the
Board of Directors of the Colegio established a permanent commission
to investigate persons, who without prior approval and authorization
by the Board, are exercising activities which constitute "full
journalistic activities."
A direct consequence of this new vigilantism was the protest
by the National Union of Journalists and the Board of Directors of
the Colegio of the publication of an interview with President Don
Luis Alberto Monge by Lic. Enrique Benavides, whose La Columna in La
Nacion is considered a national institution. In their letter to Lic.
Don Eduardo Ulibarri, the Director of La Nacion, they complained:
Both the National Union of Journalists and the College of
Journalists of Costa Rica have taken note of this evident violation
of Law 4420, which, in consideration, of your status as a Colegio
member and citizen respectful of the law, we are sure you will make
certain it does not occur again. (Emphasis added)
After the Spring l984 meeting of the Commission, the Colegio
established new restrictions on the media in Costa Rica. Declaring
itself "the only entity charged by the Government and by law to watch
over the practice of journalism by Costa Rica", the Colegio enlarged
its mandate to license not only journalists but also five new
categories of media personnel. Among these are public relations
agents, graphics reporters, journalism students, foreign
correspondents and communicologists, the latter being a profession
which as yet remains undefined. In issuing these new decrees in
July, l984, Jimen Chan, the President of the Colegio, announced the
organization's monopoly on issuing press credentials and
identifications for press vehicles. While presumably autonomous from
government control, the Colegio interprets its legal status to mean
it has law enforcement powers. For example, it summarily announced:
"Police authorities will proceed to confiscate unauthorized
credentials and report the incident to the Colegio within 24 hours."
This claim to expanded authority stimulated a blue ribbon group
of 23 Costa Rican leaders to petition the Commission this past
August. In this group were Jose Trejos Fernandez, former President
of the Republic, Rodrigo Odio, the President of the Bar Association,
and Maximo Acosta Soto, former Supreme Court magistrate. They urged
the Commission to find for Mr. Schmidt because the rights of free
expression, thought and information "cannot and should not be
monopolized in benefit of a specific group nor limited to a few
persons."
They presented the following request:
As Costa Ricans who have exercised various public
functions, we wish to express our profound concern about the
above-mentioned limitation of a fundamental and inalienable
right to individuals, and we request that you declare the
conflict in Costa Rica legislation that denies any human being
freedom of information, limiting it to an obligatory College
authorization subject to a public agency. We consider this
extremely dangerous to the democratic system which fortunately
prevails in Costa Rica, and we strongly believe it to be a
harmful example to the rest of the continent, threatening to
weaken freedom of expression...
The Colegio's recent actions go far beyond the original intent
of Law No. 4420 to stimulate a more professional press in Costa Rica.
Instead, they demonstrate a clear and present danger to the exercise
of freedom of expression in Costa Rica. The Colegio's present
regulations now govern any person--foreign or Costa Rican citizen--
who claims they are "attending press conferences, covering public
spectacles, participating in interviews or reporting on accidents,
ceremonies or other activities of 'public interest or any other
journalistic activity whatsoever..." This is a clear restraint on
the freedom of access to information.
Even those individuals, who are journalists but are not engaging
in their professional duties in Costa Rica, are subject to control.
For example, journalist Mr. Paul Ellman of The Guardian of London was
told by immigration officials to register with the Colegio within 24
hours after his arrival in July for a vacation. In another case, Ms.
Suzanne Bilello, the Mexico City Bureau Chief and Central American
correspondent for the Dallas Morning News, was ordered by immigration
to report to the Colegio , where she was subjected to an
interrogation by a non-journalist about the duration of her stay in
Costa Rica and the nature of her stories. She was warned by Colegio
personnel not to seek appointments at the Foreign Ministry "unless
you have proper credentials from the Colegio."
In all the cases mentioned, there is clearly a deliberate policy
by the Colegio to control the access and dissemination of information
in Costa Rica. As Alexis de Tocqueville wrote, "It would see that
if despotism were to be established among the democratic nations of
our days...It would be more extensive and more mild; it would degrade
men (and women) without tormenting them." So, it would seem that the
Colegio acting as a monopoly or closed shop which can authorize a
human being to seek out, receive and disseminate information or ideas
poses a serious and dangerous limitation to an inalienable right.
The Commission's decision is more than a narrow upholding of the
rights of colegios to exist at the expense of the livelihood and
profession of one individual. Rather, it is a clear signal that a
class of individuals whose profession is so closely identified with
the exercise of the freedom of expression must fear the onslaught by
government and private agencies to regulate, control and eventually
suppress them.
It is also a clear signal that the public's right to know is
being eroded. The record in this case is replete with weighty
affidavits from responsible news organizations and distinguished
Costa Ricans from all professions urging the Commission to recognize
how important the ability of journalists to practice their trade is
to the very survival and
strengthening of the democratic project in this hemisphere. As
Justice William Douglas wrote in Branzburg v. Hays (408 U.S. 665)
(1972), "...effective self-government cannot succeed unless the
people are immersed in a steady robust, unimpeded, and uncensored
flow of opinion and reporting which are continuously subjected to
critique, rebuttal, and re-examination."
The people and Government of Costa Rica recognized the
fundamental role the free flow of ideas and information plays in
preserving a democratic system when through Decree No. 14,803-G,
dated September 13, 1983, they established "Freedom of Expression
Day". They said:
Information and communication are fundamental elements of
our system of life in liberty; from the dawn of our republican
life, freedom of opinion, freedom of press and freedom of
expression have been exercised with vigor, and it is valuable
to call upon the public to ponder, at least during one day each
year, the value of freedom of expression...
Article 13 of the American Convention on Human Rights must be
understood within the greater framework of the "intention to
consolidate in this hemisphere, within the framework of democratic
institutions, a system of personal liberty and social justice based
on respect for the essential rights of man." Freedom of expression,
as defined by the Convention, is explicitly an activity pursued in
a social, rather than private context. In this manner, to attempt,
as the Supreme Court of Costa Rica has done, to separate the
regulation of the journalistic profession as an issue from the
freedom of expression is to ignore the real meaning of Article 13 and
its applicability to this case.
Freedom of expression is not an abstract idea to be achieved
when the suitable political and economic structure for a country is
actualized or social conditions are tranquil and prosperous. It is
a concrete, living right that is the basis and core of a democratic
society. It presumes an equality of citizens and their right to
participate in the shaping of their own society as an everyday
phenomenon and a continual process.
The underlying issue in this case is whether a professional
elite has an inherent right to dictate the direction of a society
above and against the fundamental rights of the average citizen to
inform and be informed by fellow citizens. That this case involves
a country which uniquely enjoys the moral shield of being the
vanguard of democratic change in this hemisphere is, indeed,
unfortunate and unexpected.
As the first nation to ratify the Pact of San Jose and the first
nation to accept the jurisdiction of the Inter-American Court of
Human Rights, Costa Rica could perform another service for the
inter-American system by asking the Court for an advisory opinion on
this matter. The l969 law authorizing the Colegio de Periodistas to
regulate the profession of journalism is sufficiently in conflict
with Article 13 of the American Convention of Human Rights as to
warrant its re-examination by both the
Supreme Court of Costa Rica and the National Assembly. Such a
reconsideration, contrary to various parties' assertions, does not
mean that all professional associations are jeopardized or even that
of the journalists. Rather, the concrete application of this law,
since the Schmidt conviction, in the example given above, should
warrant concern about its present and future abuse.
As the representatives of the Government of Costa Rica testified
before the Commission, Mr. Stephen Schmidt is a man of impeccable
character, a fine journalist, and never in his 12 years in Costa Rica
posed a threat to the public order or showed anything but a high
regard for the Costa Rican people and government. His conviction and
sentence for the illegal exercise of the Profession of Journalism
should be reserved, pending reform of the Colegio Law, and he should
be allowed, if he so desires, to return to Costa Rica and again
practice his profession without prejudice, criminal record or
harassment.
