Brazil

BRAZIL Brazillives in aclimate of complete and unequivocal freedom of expression. Constitutional provisions exist that guarantee liberty of expression. However, during the course of the past twelve months there have been sorne isolated incidents that required the intervention of the National Association of Newspapers (AN]), by means of its Committee on Freedom of Expression. According to the AN], freedom of expression should not only be defended against potential threats, but should also be promoted and stimulated. Thus, since April1994, the ANJ's Committee on Freedom of Expression has been coordinating with its affiliated newspapers the dissemination in Brazil of the Declaration of Chapultepec on freedom of expression in the Americas. The campaign encourages government authorities as well as politicalleaders, businessmen, those involved in cultural endeavors and professionals to subscribe to the document. It is paradoxical that, in a land that is experiencing one of its periods of broadest freedom, one of the biggest problems in defense of liberty of expression has been an excess of zeal on the part of local judicial authorities. They have tried to restrict and inhibit journalistic activity based on provisions contained in the electorallaw and press law adopted by the military regime and which continue in force in spite of the promulgation of the 1988 democratic Constitution. Faced with errors committed by the lower courts, the AN] has decided to take the matter to higher tribunals whose judges tend to be more competent and less involved in local affairs, thus better able to uphold freedom and the law. The organization's prompt action, which included offering professional expertise and other resources to the judiciary - an initiative that has been repeated throughout recent years - has contributed to the fact that Brazil continues living in an age in which liberties are in full effect. One of the threats hovering over freedom of expression stems, again paradoxically, from a law conceived to ensure rights, the so-called Statute on the Child and Adolescent. This statute permits lower-court judges, independently of the judgement handed down in a particular case, to suspend the circulation of up to two editions of publications accused of contravening provisions of the statute. More than ayear ago, the Attorney General of the Republic accepted the position of ANJ, which argued that the penalty is unconstitutional. Nevertheless, up to now the Supreme Federal Tribunal has not ruled on the issue. In this second half of 1994, Brazil is experiencing the civic agitation stirred up by the biggest elections in its history. Being contested are the offices of president of the Republic, state governors, senators (two-thirds of the Senate), federal deputies and state deputies. As if that were not enough, the electoral campaign virtually coincides with the entering into force of the Economic Stabilization Plan. The economic plan, in spite of the difficulties inherent in this type of government initiative, has been showing satisfactory results, without the necessity of resorting to mandatory measures. The National Association of Newspapers is staying on the alert in order to support - as it did in earlier elections - newspapers and journalists who are threatened while carrying out their mission. The Association is doing this by means of precautionary resources and measures which, should it become necessary, it will present before the Superior Electoral Tribunal, which is the highest adjudicatory level in these cases. To clarify potential gray areas in connection with the press' role in the coverage of free and democratic elections, the AN] last August invited the president of the Superior Electoral Tribunal, Minister Sepulveda Pertence, to give a talk to the Regional Gathering of Newspapers which the AN] organized in Salvador, Bahia. During his presentation, Minister Pertence assured his audience that no restrictions on freedom of the press existed in relation to the electoral campaign, and that the only limitations in effect were those stipulated by legislation having to do with electronic media and the dimensions of electoral advertising in the print media. The president of the Superior Electoral Tribunal praised the activities of the ANJ (which on that occasion was celebrating its 15th anniversary) in its battle on behalf of freedom of expression and the consolidation of democracy in the country. However, he conceded that during the current election campaign there had occurred a series of misunderstandings, "ineluding even among the judges themselves" - who tried to impose on the print press restrictions that apply to radio and television. Nonetheless, the SET president's recognition that errors have occurred has its positive aspecto It shows that the Brazilian electoral justic system - at least at the highest levels - is sensitive to, and prepared to avoid the repetition of, incidents such as those that occurred during the 1992 municipal elections. Those incidents required a burst of activity on the part of the ANJ Committee on Freedom of Expression. On that occasion, the Committee found itself obliged to act in concert with the Electoral Justice to prevent lower courts, ineluding regional tribunals, from applying the electorallaw in an unconstitutional manner. The following is a chronological summary of the relevant events since March: March. The Regional Work Tribunal of the 5th Region (BA) imposed a penalty on lay magistrate and professional journalist Oleone Coelho Fonses for an article which the aforesaid court deemed injurious. The ANJ addressed the president of the tribunal to protest what it considered an intimidating procedure which amounts to a restriction on liberty of expression, independently of Oleone Coelho Fonses' capacity as judge. As a result of this protest, the penalty against the journalist was anulled as well as a charge that had been filed against him in the Federal Tribunal. May . The Juvenile Court of Jundai (SP) barred the Jornal de Jundai Regional from publishing photographs of persons under age because the newspaper had printed a report under the headline, "Mother is separated from her children." It turned out that there was an error in interpretation of the Statute on the Child and Adolescent, since the issue did not deal with minors as violators of the law. The problem was resolved administratively, after the newspaper made its elarifications of the case before the court. July. The president of the newspaper O Estado do Norte, of Porto Velho (RO), received threats because of the editorial position assumed by his newspaper. The ANJ appealed to the Secretary of Public Security of the State of Rondonia, requesting that he take the necessary measures to guarantee the journalist's physical security. AIso in July, the ANJ received a complaint from the Diario da Serra, of Campo Grande (MS), reporting that it was encountering problems relating to the electorallaw. The newspaper was the victim of excessive zeal exercised by the Regional Electoral Tribunal of the State of Mato Grosso do Sul, which set forth the legal principie that media coverage of candidates' activities should be "equitable," as if that were something that could be measured. The action was reconsidered after the ANJ appealed to the region's principal electoral authority. The other local newspapers received guidance from the ANJ on how to defend themselves in similar cases. September 1994. The headquarters of the National Federation of Professional Journalists (FENAJ) in Brasilia (DF), was searched and its files, documents and computers destroyed. The ANJ expressed its indignation at such actions. The organization's reaction was publicized through a note published by its member newspapers and by letters directed to the president of the entity representing Brazilian journalists. In another incident, the circulation of the periodical Esquema Oeste of Guarapuava (PR) was suspended. The newspaper ceased to circulate for four days because its proprietor, Leonel Julio Farah, refused to submit his publication to prior censorship. The censorship request was made by Fernando Ribas de Carvalho, a candidate for deputy, who was trying to impede the publication of complaints against him. The Regional Electoral Tribunal ruled in favor of the newspaper, meaning that it could circulate without prior censorship. The following is an account of the most significant legal actions: 1. A legal argument alleging the unconstitutionality of the artieles of the Statute on the Child and Adolescent dealing with the confiscation of newspapers. The National Association of Newspapers (ANJ) appeared before the Attorney General of the Republic to state its position contending that the provisions contained in Artiele 247 of Law No. 8,069/90 are unconstitutional. The Attorney General of the Republic accepted the ANJ's argument and filed a Direct Action of Unconstitutionality concerning the article before the Supreme Federal Tribunal. The ruling is pending. 2. A request to the Treasury Minister to broaden the exemption from the IPMF to all activities of journalistic enterprises. In May 1994, the AN] presented a request to the Treasury Minister to extend the exemption from the Temporary Tax on Financial Operations to aH operating activities of journalistic firms. As yet there has been no reply from the Minister. 3. Replies to queries by hundreds of AN] members on issues such as freedom of expression, election campaign advertising and the journalistic profession. The AN] responded through its vice president for legal affairs.