 |
 |
 |
 |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
 |
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
 |
 |
 |
|
 |
|
||||
|
P
r o l o g u e b y D a n i l o A r b i l l a
This
book would not exist if only we were to observe the maxim that the
best press law is no press law. In an ideal situation, the legislation
in the Americas governing free speech, press freedom and freedom
of information should take up no more than a couple of pages, containing
clear and frankly-worded clauses prohibiting any attempt to ?regulate,?
?guarantee? or ?ensure? ? or whatever word might be used ? freedom
of expression. That?s the way it should be. Unfortunately, that?s
not the way it is. When
we in the Committee on Freedom of the Press and Information began
compiling the laws and regulations governing free speech in the
hemisphere, the aim was to provide IAPA members and anyone else
interested in this issue a full report that they would find useful,
in particular, in learning about the environment in which they have
to defend themselves ? and defend that basic freedom. In
merging this initiative into the Chapultepec Project, with the prospect
of obtaining funding for it, we instituted a more ambitious project
which, following the compilation that we present here, will allow
us to go further and carry out a study comparing legislation in
each country concerning freedom of expression with what is enshrined
in universal and regional conventions ? in particular the Ten Principles
of the Declaration of Chapultepec. At the same time, it would serve
as a way of making people in every corner of the Americas aware
of those prerequisites for such a fundamental right, the basis,
custodian and guarantee of all the other freedoms. These
flowery laws that we have put together here have one starting-point
in common ? free speech, press freedom and the right to information
? but in one way or another their aim is really to regulate and
thus curtail those rights. The Declaration of Chapultepec, on the
other hand, is the reaffirmation of those freedoms, securing them
and clearly establishing what their scope is and what the principal
threats they face are. The Declaration moreover is an endorsement
of what philosopher John Locke believed ? that the state exists
to preserve the individual rights of its citizens and the decision
of each person to give up some of his rights in order for the law
to regulate them is not so that they should be violated or curtailed.
Sometimes we forget that the state or government or the law itself
may proclaim human rights but not actually provide them. These are
inherent in man, they are natural, inalienable and precede any regulation. It
is on this premise that this work was undertaken and on which this
book should be used in the defense of press freedom. The
extent of such freedom is not always clear and for a definition
we turned to noted Argentine thinker Juan Bautista Alberdi, who
with magnificent precision summarized press freedom this way, ??the
press is a non-delegated power that the country retains in order
to exercise it itself?? and to abdicate that power is the same as
to renounce sovereignty and give up being a free people. We believe
there is no truer definition ? freedom of the press is one that
the people do not turn over to their representatives, they keep
it for themselves, it is what enables them to know what their governments
are up to and to work together with their leaders. They do so through
the press which, as we have said before, it is the best substitute
for the Athenian agora and is essential for government of the people
by the people. On
that basis, it is ridiculous to think that governments are in any
position to regulate free speech and press freedom and ? much less
? to censor the people, to tell them what they may see, read or
hear, or what they may say, comment on or report. It is the people
who may censure the government, not the other way around, as James
Madison proclaimed. Freedom
of expression as a non-delegated power is the essence of democracy,
equaled only by the right of the people to freely elect those who
govern them. Freedom of expression and the vote are a citizen?s
unrenounceable rights. Also, in the case of election of government
it is inconceivable to speak of democracy with a self-appointed
government. But just as freedom of expression and elections of government
are unrenounceable, freedom of expression and press freedom are
the custodian and the guarantee of enjoyment of that other right.
Observe, for example, just how liberty is threatened by laws that
ban the publication of election campaign opinion polls. Such a ban
at the same time attacks the right of people to know and conspires
against their right to freely elect their government. Prof. Justino
Jiménez de Arechaga, a prominent Uruguayan who was president and
member of the Inter-American Commission on Human Rights for many
years, said in his law classes that there are three kinds of electoral
fraud: during the election, after the election and before the election.
In the first case, he cited the example of non-existent citizens
casting a ballot two or three times; in the second case, the announced
returns not reflecting the actual vote, and in the last case, he
mentioned the lack of press freedom as a form of electoral fraud
prior to polling. If there are limitations put on a citizen learning
in any way he wants about who and what to vote for, if restrictions
are placed on his right to choose based on an awareness of all the
elements in play, then one cannot talk about free elections or talk
about democracy. In
light of all of this, it is no exaggeration nor is it mistaken to
maintain that there must be liberty in order to have freedom of
expression, and for that reason we insist on it in presenting this
volume in which so many laws concerning the press are compiled.
Too many, for, as the scholar Thomas Payne put it, ?There is no
valid reason to restrict or to seek to curtail freedom of the press.?
|
questions
or comments? | |
