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In a very busy Wednesday, Bolivia’s Plurinational Constitutional Tribunal struck down a longstanding law criminalizing “contempt” toward public officials and limited the scope of an anti-corruption law; rounding out the court’s surge into the headlines, justice Gualberto Cusi made biting comments on the government’s failure to abide by the court’s ruling on the TIPNIS consultation.

Contempt law ruled unconstitutional: The Tribunal found, in Judicial Ruling 1250/2012, that the law prohibiting contempt (“desacato” ) towards senior public officials through defamation is an unconstitutional violation of the freedom of expression. The court advised public officials that they may use civil court procedures to deal with slander, and nullified the law in its entirety. Numerous opposition figures, including the center-left Mayor of La Paz, Luis (Lucho) Revilla, and the right-wing Governor of Santa Cruz, Ruben Costas, have been indicted under this very broad statute following complaints from the governing Movement Towards Socialism party.

The “Marcelo Andrés Santa Cruz” Anti-corruption Law cannot be applied retroactively: In the first legislative session under the new Constitution, the Movement Towards Socialism supermajority wasted no time in approving a new law criminalizing corruption. The law allows for severe penalties against officials who took bribes or other compensation to change policies. It was designed to give the government room to revise contracts and licenses approved under improper influence, and to recover fortunes which had been pilfered from the government. However, it was also referred to as the “Guillotine Law” (including by the Vice President) for its ability to end the political careers of past government officials. On Wednesday, the court sharply limited this aspect, finding that the law may not be applied retroactively “when the sanction [it imposes] is more severe or the act being judged would not have constituted a crime when it was carried out.”

Gualberto Cusi speaks out on TIPNIS: The Constitutional Tribunal had already ruled on the TIPNIS consultation, insisting that any process establishing the will of the communities in the Isiboro-Sécure National Park and Indigenous Territory about the proposed Villa Tunari–San Ignacio de Moxos highway, which would cut through the region and accelerate already serious deforestation, must occur in a mutually agreed framework. Justice Gualberto Cusi—the judge who received the most votes in last year’s judicial election—denounced the current consultation process as a “disaster” that violates the indigenous inhabitants’ rights. Further, the justice suggested that the TIPNIS indigenous may need to look outside Bolivia for protection of their rights: “I believe that in Bolivia, no[, nothing can be done.] It will have to be the indigenous who appeal these acts to international tribunals. Yo creo que en Bolivia no (se puede hacer algo), tendrán que ser los indígenas quienes apelen a estos hechos en tribunales internacionales.” The most likely forum for international appeals is the Inter-American Court on Human Rights, which has been a pathbreaking forum for indigenous rights.

None of these rulings would be particularly exceptional for a high court around the world, but this particular high court is in its first year, and came out of a controversial nominating and election process which was boycotted by multiple opposition forces. For it to strike down major laws embraced by the governing party and publicly embrace human rights standards around freedom of expression, indigenous consultation, and ex post facto laws makes this something* of a Marbury v. Madison moment for the new court.

* The analogy is inexact since a Constitutional Tribunal began operation in 1999.

Since August, one issue has generated more headlines here in Bolivia than any other: The Law Against Racism and All Forms of Discrimination, which was debated and passed by the Plurinational Legislative Assembly (aka, the parliament) in late September.

The remarkably short Law 045 is the Bolivian equivalent of more than a generation of civil rights law in the United States. It bans discrimination by public officials and private businessmen, criminalizes verbal and physical aggressions, charters educational efforts on discrimination, creates a national commission on issues of discrimination, and imposes sanctions on the media for circulating “racist ideas.” The scope of the law is broad, including discrimination on the basis of race, ethnicity, religion, language, age, sexual orientation, disability, and pregnancy, among other statuses. A such, it is parallel to American laws from the 1948 integration of the Armed Forces to the 1965 Civil Rights Act to the yet-to-be-passed Employment Non-Discrimination.

So, it would not be shocking if wide range of controversies had emerged over the manifold implications of the law. But this has not occurred. One single controversy, however, has risen to national prominence.

Two articles of the proposed legislation, Articles 16 and 23, have been roundly criticized by the mainstream, privately-owned press. Article 16 makes publications subject to economic fines and even closure for circulating racist ideas. And Article 23 removes any special immunity for members of the press from prosecution under the law. The mainstream press has characterized the articles as the rebirth of a 1980s proposal for prior press censorship, known as the Ley de Mordaza (the Jaws Law, for its ability to crush the press). They led marches across the country as the law was being considered, and coordinated a nationwide protest by in which newspaper covers all read only: “Without freedom of expression, there is no democracy.”

As an (US) American, of course, these provisions are shocking. Our Voltaire (“I detest what you have to say but will defend to the death your right to say it”)-to-American Civil Liberties Union tradition of free speech is, however, a globally extremely tolerant position. (I’ve written before about how our notion of the freedom of the press is, on the other hand, a highly restricted vision of public access to the media, essentially limited by press ownership.) Following the nightmares of World War II, the global human rights regime initiated by the Universal Declaration of Human Rights drew the line on free expression at racism and incitement to war, which it said should be prohibited. International conventions follow these lines by banning “racist incitement.” Germany bans Nazi parties, advocacy of and apology for genocide, and rallies by the racist right. Several other Latin American countries have restrictions on racist media which include prison terms, unlike the Bolivian law. Both the OAS president and the UN human rights representative who have visited in recent weeks have emphasized that the law is appropriate, although the line between racist incitement and free expression must be scrupulously drawn. They’ve also urged the private press to end their boycott of the rule-making process on the legislation.

Strangely, however, the American standard is irrelevant to the debate here. In three months, I have not heard or read a single defense of free *speech* as opposed to free *press* on these issues. No one is suggesting that criminalizing calling someone an “Indio de mierda” (“shitty Indian”) to their face is inappropriate. (Doing so in the United States would of course ignite a national firestorm over “thought police” and be overturned in short order by any competent Federal Court.) There has been a great deal of concern about whether the a TV station filming and disseminating that act would be liable to prosecution (the government regulations proposed on the issue now make it clear that such reporting of others’ speech will not be subject to sanction).

Aside from marches, the press and many media workers’ unions have used a one-day strike, hunger strikes in Santa Cruz, and an immense petition campaign to oppose the law, which sailed through the MAS-controlled parliament. On November 26, they submitted a sample selection of signatures to Vice President Álvaro García Linera. The press claims to have gathered one million signatures, although they are still being sent to a single place to be verified, and the eight books they handed over only come to some 32 thousand. Which brings us to the current impasse: while the new Constitution permits citizen initiatives as part Bolivian democracy, there is no enabling legislation yet to regulate the process. The press is depending on the moral weight of its gathered signatures (one million is a substantial portion of Bolivia’s 10.6 million inhabitants) to kickstart the initiative process. So far, the government seems resistant. And so, a policy controversy seems about to cross over to a crisis of democracy.

Meanwhile, the mainstream press is not the only voice on this issue. During the debate, a book was published on racism by the press over the last century in Bolivia. This racism runs up through the media’s overt collaboration with (really, rallying for) attacks on indigenous protesters in Cochabamba in January 2007 and Sucre in 2006, 2007, and 2008. The cocalero movement has declared itself on alert in defense of the law, and marched here in Cochabamba. And a stream of “alternative media” which includes indigenous radio producers, radical working-class publications, and (strangely given the name) workers in the government-owned media, has taken a distinct position calling for professional standards and arguing that racism and free expression are fundamentally different. They’ve also used the anti-racism law as an opportunity to argue for systematic coverage of indigenous issues and use of indigenous languages in the media.

For me, this storyline is a fascinating instance of public debate in the process of rights-making, an opportunity to see the shape of the Bolivian legislating process (very little of which takes place inside the walls of the Legislative Assembly), and another turn in the kaleidoscope of political alliances here in Bolivia. It’s also forcing me to reconsider (although not yet change) my ideas of what free expression is. I’ve conducted some interesting brief interviews with the alternative press on this, and hope to delve more as the story develops.

In the big news, definitely the headline: ACI candidate Savina Cuellar defeats MAS candidate Walter Valda. The final vote: 51.5% to 41.2%, far closer than the initial margin that reached the early national and international press. As expected, Sucre went for her heavily (67,38% to 26,57%), but the mostly rural provinces backed Valda in a big way. Final details en español.

So on to the experiences of the day. First the “act of good government” made for a silent city for much of the day: no vehicles on the streets except for the occasional motorbike and those cars granted a permit by electoral officials. Certain Bolivian election norms are better than the American ones: a period of reflection with no advertising before the vote, free transport for elderly voters, and an election held on a day when no one has to work. And with no one having to work, all the shops and restaurants were closed, save a small few servicing visiting gringos (which means all folks from the global North in Bolivia) and internet cafes connecting the less resourced reporters with the ‘Net.

As early reports from the city’s ballot boxes came in, Savina’s supporters gathered in the main square and rallied. Some of their chants reflected the months before, notably “Sucre de pie, Evo de rodillas! [Sucre on the march, Evo on his knees!]” Others talked of becoming the national capital and winning autonomy for the department.

Chatting with MAS election observers (each party is entitled to a representative in each precinct), it’s clear there was a legitimate ACI victory, although it was clouded by extra “observers” for the ACI in some precincts who belong to confrontation groups (read, street fighters).

The story of May 24 remains untold in Sucre’s mainstream media despite at least two attempts to show Cesar Brie’s documentary on TV. Both were interrupted by covert means–once the cable
company switched off the local channel showing it, and the other time, (and no, I’m not making this up), unknown parties pushed eucalyptus trees into the power lines that feed local broadcast transmitters.

If in the atmosphere of Sucre I’ve felt very partisan in my descriptions of what’s going on, which is quite frighteningly hostile to open organizing by the MAS, the left, etc., my personal feelings there were in fact very liberal. In the older sense of the word. While I know that the different performance of the parties contending for government will make a big difference to many in the department, probably a difference of life or death to those who depend on public services (Cesar Brie told me that infant mortality has been halved in the past few years), I couldn’t stop focusing on the absence of the ability organize openly, to do things like open an office.

I’m trying to collate all my thoughts on/experiences of the election, its national significance, and some photos. So stay tuned.

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