REPORT Nº 2/96 CASE 10.325 (GRENADA) March 1, 1996
I. ALLEGED
FACTS:
A summary of the alleged facts of the case as submitted by the
Petitioners follows:
1. On March 31st, 1989,
a petition was received by the Inter-American Commission on Human Rights which
stated that four boxes of Pathfinder books were seized on March 8, 1989, at
Grenada's Point Salines Airport. It
stated that these books were still being held by Grenadian police, and were
being checked against a list of
"banned books." Efforts
to retrieve the books had failed.
2. The books were sent
from Pathfinder Press, New York to Dr. Terence Marryshow, (Terry Marryshow)
leader of the Maurice Bishop Patriotic Movement of Grenada (MBPM.)
Titles seized included, The Struggle Is My Life, by Nelson
Mandela; Maurice Bishop Speaks; The Grenada Revolution 1979-83; Nothing
Can Stop the Course on History; An Interview with Fidel Castro by U.S.
Congressman, Mervyn Dymally, and Jeffrey M. Elliott; One People, One
Destiny; The Caribbean and Central America Today, edited by Don
Rojas; and Malcolm X Speaks. It was alleged that a personal copy of the
mystery novel, Our Man in Havana, by Graham Greene was taken from Meryl
Lynn Farber.
3. On March 8, 1989,
Government officials granted three day visas to the Director of Pathfinder
Press, Steve Clark, Meryl Lynn Farber, Argiris Malapanis, and Minnesota
Professor August Nimtz, upon their arrival in Grenada.
They were denied visa extensions to remain in Grenada to attend a
conference on March 11-13 sponsored by the Maurice Bishop Patriotic Movement
commemorating the tenth anniversary of the Grenadian Revolution of March 1979
and to participate in the celebrations.
4. The petitioners
allege that they were threatened by Grenadian Immigration officials who stated
that if they attempted to stay in Grenada and attend the gathering, they would
be arrested and deported.
5. The petition referred
to allegations stating that U.S. visitors to Grenada do not normally need visas,
but officials explained that their policy was not to permit any international
participation at the conference.
II. THE PETITIONERS
REQUEST THAT:
The Commission should inquire and protest the attack on freedom of
speech, press, and information, to Grenadian officials.
III.
ARTICLES ALLEGEDLY VIOLATED:
Article 13 of the American Convention on Human Rights, "Freedom of
Thought and Expression." (Petitioners have not specifically cited this
article.)
IV. PROCEEDINGS BEFORE
THE COMMISSION:
1. Upon the receipt of
the petition the Commission complied with the procedural requirements of its
Regulations. In this regard, during
the pendency of the case, the Commission transmitted notes to the petitioners
and the Government of Grenada, studied and examined the case.
2. The Commission
transmitted several notes to the Government of Grenada.
In the first note dated May 2, 1989, it transmitted the pertinent parts
of the complaint and requested that the Grenadian Government supply it with
information which it deemed appropriate to the allegations of the complaint and
which addressed the issue of exhaustion of domestic legal remedies within 90
days. The Commission qualified the
request by stating that the request for information did not constitute a
decision as to the admissibility of the communication.
3. In the second note
dated September 21, 1989, it reiterated the request for information, referred to
in its note of May 2, 1989 and stated that if the information was not received
within 30 days it would consider the application of Article 42 of the
Regulations. Article 42 of the
Commission's Regulations provide:
The facts reported in the petition whose pertinent parts have been
transmitted to the government of the State in reference shall be presumed to be
true if, during the maximum period set by the Commission under the provisions of
Article 34 paragraph 5, the government has not provided the pertinent
information, as long as other evidence does not lead to a different conclusion.
4. The Commission
received several notes and enclosures from the petitioners, including a Decree[1]
by the former British Commonwealth Governor General Paul Scoon, banning the said
books, several international letters of protests from various members of
Congress, members of the British Parliament and other persons, denouncing the
Grenadian Government's actions, addressed to then Prime Minister, Herbert Blaize
and several Pathfinder Press releases depicting the contents of the complaint.
5. The petitioners
informed the Commission by note that on March 20th, 1989, Maurice Bishop's
Patriotic Movement leader, Terry Marryshow filed suit in Grenada's High Court
challenging the constitutionality of the 1951 British Colonial Law, under which
the books were banned and that on April 7 and April 21st, 1989, the Grenadian
Government's lawyers requested a postponement and were granted a postponement of
the trial.
6. The case was
presented to the Commission on October 2, 1992, at its Eighty Second Period of
Sessions. The Commission examined
the case and on that day sent a letter to the parties requesting additional
information.
7. To date in response
to the Commission's letter of October 2, 1992, the Commission has not received
any arguments from the Grenadian Government with regard to the admissibility of
the petition, nor on the merits of the case.
The Commission has sent several letters to the Government reiterating its
request for information concerning the case[2]
and its status in the Courts, in Grenada. The
only documentation received from the Government was a statement referring to
Section 6 of the Importation of Publications (Prohibition) Act, (Chapter 145),
of the Revised Laws of Grenada, Order, 1989 (S.R. & O. No. 6 of 1989, and a
note dated May 17, 1993, stating the following:
The Permanent Mission of Grenada presents its compliments to the
Executive Secretary of the Inter-American Commission on Human Rights of the
Organization of American States and has the honour to transmit from the
Government of Grenada the attached information regarding Case No. 10.325 in
response to communication in the matter dated October 2, 1992, to the Prime
Minister of Grenada.
The Permanent Mission of Grenada avails itself of this opportunity to
renew to the Executive Secretary of the Inter-American Commission on Human
Rights of the Organization of American States the assurances of its highest
consideration.
8. The Commission sent a
copy of this Order to the petitioners for their comments and observations. In response to the Commission's letter of October 2, 1992,
requesting information from the petitioners and their comments and observations
on the Importation and Publication Order, the petitioners sent several notes to
the Commission concerning the status of the case in the Courts of Grenada.
Included in the information sent to the Commission, is a note dated June
20, 1995, in which the petitioners informed the Commission that "the suit
contesting the banning decree remains before the High Court, which heard the
case in 1989, but has yet to issue a ruling, in the absence of a ruling, the ban
remains in effect." More than
eighty books and pamphlets published by Pathfinder Press remain banned.
Attached to the letter of June 20, 1995, was a letter from the
petitioner's lawyer, which stated the following: "Please be advised that I am still awaiting Judgment in
the above matter. I have written
several times to the Judge without result.
I have since written to the Chief Justice in an effort to have the same
delivered." The suit was
entitled "Suit 129 of 1989, In the matter of the Importation of Publication
(Prohibition) Ordinance Chapter 145 of the Revised Laws of Grenada as
amended."
V. SUBMISSION
OF THE PARTIES:
1. The Government of
Grenada has not presented any arguments on the admissibility and merits of the
petition. However, attached to its
note of May 17, 1993, the Government made the following statement: "The
power to prohibit the importation of certain publications is provided for by
section 3 of the Importation of Publications (Prohibition) Act (Chapter 145 of
the Revised Laws of Grenada, under which section the Importation of Publications
(Prohibition) Order, 1989 (S.R. & O. No. 6 of 1989), was made."
Section 6 of the said Act, gives power to:
(a) any officer of the Post Office
Department not below the rank of Deputy Post-master;
(b) any officer of the Customs
Department not below the rank of Chief Revenue Officer; (c)
any member of the Police Force, and
(d) any other official authorized in
that behalf by the Governor-General, to examine and detain any package or
article which he suspects to contain any prohibited publication or extract
therefrom.
2. The Government of
Grenada also stated that the domestic legal remedies and procedures are provided
for under section 16 of the Grenada Constitution Order 1973 (S.I. 1973 No.
2155), which reads as follows:-
16. (1) If any person
alleges that any of the provisions of sections 2 to 15 (inclusive) of this
Constitution has been, is being or is likely to be contravened in relation to
him (or, in case of a person who is detained, if any other person alleges such a
contravention in relation to the detained person), then, without prejudice to
any other action with respect to the same matter which is lawfully available,
that person (or that other person) may apply to the High Court for redress.
16. (2) The High Court shall
have original jurisdiction -
(a)
to hear and determine
application made by any person in pursuance of subsection (1) of this section;
and
(b)
to determine any question
arising in the case of any person which is referred to it in pursuance of
subsection (3) of this section and may make such declarations or orders, issue
such writs and give such directions as it may consider appropriate for the
purpose of enforcing or securing the enforcement of any of the provisions of
sections 2 to 15 (inclusive) of this Constitution:
Provided that the High Court may decline to exercise its powers under
this subsection if it is satisfied that adequate means of redress for the
contravention alleged are to have been available to the person concerned under
any other law.
3. The Petitioners have
not presented any arguments to the Commission but stated in their letter to the
Commission of June 20, 1995, that in Grenada, "the suit contesting the
banning decree remains before the High Court, which heard the case in 1989, but
has yet to issue a ruling. In the
absence of a ruling, the ban remains in effect."
They also state that they have made several written requests to the Judge
to issue a ruling, but no decision has been made and that a written request of
the same was made to the Chief Justice.
VI. THE ISSUES TO BE
DECIDED BY THE COMMISSION:
1. Is this petition admissible?
2. Do the
alleged facts constitute a violation of Article 13 of the American Convention on
Human Rights?
VII.
COMMISSION'S ANALYSIS:
A.
IS THIS PETITION ADMISSIBLE?
1. Grenada
is a party[3]
to the American Convention on Human Rights and is subject to its provisions.
Article 46 of the American Convention provides that: Admission by the
Commission of a petition or communication lodged in accordance with articles 44
or 45 shall be subject to the following requirements:
a. that the remedies under domestic
law have been pursued and exhausted in accordance with generally recognized
principles of international law;
b. that the petition or
communication is lodged within a period of six months from the date on which the
party alleging violation of his rights was notified of the final judgment;
c. that the subject of the
petition or communication is not pending in another international proceeding for
settlement; and
d. that, in the case of
article 44, the petition contains the name, nationality, profession, domicile,
and signature of the person or persons or of the legal representative of the
entity lodging the petition.
2. The
provisions of paragraphs 1.a and 1.b of this Article shall not be applicable
when:
a. the domestic legislation of
the state concerned does not afford due process of law for the protection of the
right or rights that have allegedly been violated;
b. the party alleging
violation of his rights has been denied access to the remedies under domestic
law or has been prevented from exhausting them; or
c. there has been unwarranted
delay in rendering a final judgment under the aforementioned remedies.
2. Petitioners
have alleged that suit was filed in the High Court of Grenada on March 20th,
1989, challenging the constitutionality of the 1951 British Colonial Law, under
which books have been banned, and despite several written requests to the Court
to render a decision, none has been forthcoming.
3. The Government has
not argued that domestic remedies have not been exhausted and are available to
the petitioners in the courts in Grenada. It
has however, stated, that the power to prohibit the importation of certain
publications is provided for by section 3 of the Importation of Publications
(Prohibition) Act (Chapter 145) of the Revised Laws of Grenada, under which
section the Importation of Publications (Prohibition) Order, 1989 (S.R. & O:
No.6 of 1989) was made. It referred
to Section 6 of the Act which grants power to certain government officials to
enforce the Act, and Section 16 which states that domestic legal remedies and
procedures are provided for under Section 16 of the Grenada Constitution Order
1973 (S.I. 1973 No. 2155).
4. It also referred to
Section 16 (1) which provides: "If any person alleges that any of the
provisions of sections 2 to 15 (inclusive) of this Constitution has been, is
being or is likely to be contravened in relation to him (or, in the case of a
person who is detained, if any other person alleges such a contravention in
relation to the detained person), then, without prejudice to any other action
with respect to the same matter which is lawfully available, that person (or
that other person) may apply to the High Court for redress."
Section 16(2) grants original jurisdiction to the High Court to deal with
matters arising under thereof and can hear and determine the application or any
question arising thereunder, can make declarations or orders pertaining to the
same, including the declining of jurisdiction.
5. The Commission finds
that the petitioners have exhausted domestic remedies as provided by Article 46
(2) (c) because there has been unwarranted delay by the High Court of Grenada in
rendering a final judgment of their suit filed on March 26, 1989. The Government of Grenada has not presented any arguments as
to why the provisions of Article 46(2)(c) should not apply.
The Commission finds that this petition is admissible.
B. DO THE
ALLEGED FACTS CONSTITUTE A VIOLATION OF ARTICLE 13?
1. Article
13 of the American Convention provides:
1. Everyone has the right to freedom
of thought and expression. This
right includes freedom to seek, receive, and impart information and ideas of all
kinds, regardless of frontiers, either orally, in writing, in print, in the form
of art, or through any other medium of one's choice.
2. The exercise of the right
provided for in the foregoing paragraph shall not be subject to prior censorship
but shall be subject to subsequent imposition of liability, which shall be
expressly established by law to the extent necessary to ensure:
a. respect for the rights or
reputations of others; or
b. the protection of national
security, public order, or public health or morals.
3. The right of expression may not
be restricted by indirect methods or means, such as abuse of government or
private controls over newsprint, radio broadcasting frequencies, or equipment
used in the dissemination of information, or by any other means tending to
impede the communication and circulation of ideas and opinions.
4. Notwithstanding the provisions of
paragraph 2 above, public entertainments may be subject by law to prior
censorship for the sole purpose of regulating access to them for the moral
protection of childhood and adolescence.
5. Any propaganda for war and
advocacy of national, racial, or religious hatred that constitute incitements to
lawless violence or to any other similar action against any person or group of
persons on any grounds including those of race, color, religion, language, or
national origin shall be considered as offenses punishable by law.
2. Section
10 of the Constitution of Grenada of 1973[4]
provides for the "protection of freedom of expression."
Section 10 provides:
(1) Except with his own consent, no
person shall be hindered in the enjoyment of his freedom of expression,
including freedom to hold opinions without interference, freedom to receive
ideas and information without interference, freedom to communicate ideas and
information without interference (whether the communication be to the public
generally or to any person or class of persons) and freedom from interference
with his correspondence.
(2) Nothing contained in or done
under the authority of any law shall be held to be inconsistent with or in
contravention of this section to the extent that the law in question makes
provision- (a)
that is reasonably required in the interests of defence, public safety,
public order, public morality or public health; (b)
that is reasonably required for the purpose of protecting the
reputations, rights and freedoms of other persons or the private lives of
persons concerned in legal proceedings, preventing the disclosure of information
received in confidence, maintaining the authority and independence of the courts
or regulating the technical administration or the technical operation of
telephony, telegraphy, posts, wireless broadcasting or television; or (c)
that imposes restrictions upon public officers, and except so far as that
provision or, as the case may be, the thing done under the authority thereof is
shown not to be reasonably justifiable in a democratic society.
3. The facts presented
to the Commission establish that the Government of Grenada banned 4 books
published by Pathfinder Press. The
books were seized at Grenada's Point Salines Airport on March 8, 1989 and were
still being held by Grenadian police. The
Grenadian Government has not offered any arguments on the merits of the case,
nor has it contested the facts of the case.
Both the American Convention on Human Rights and Article 10 of the
Constitution of Grenada 1973, grant the petitioners the right to freedom of
thought and expression, which includes the right to seek, receive and impart
information and ideas of all kinds, regardless of frontiers, either orally or in
writing, in print, in the form of art, or through any other medium of one's
choice, without interference, freedom to communicate ideas and freedom from
interference of correspondence.
4. In addressing this
issue, the Inter-American Court of Human Rights have stated that:
Article 13, indicates that freedom of thought and expression
"includes freedom to seek, receive and impart information and ideas of all
kinds...." This language establishes that those to whom the Convention
applies not only have the right and freedom to express their own thoughts but
also the right and freedom to seek, receive and impart information and ideas of
all kinds. Hence, when an
individual's freedom of expression is unlawfully restricted, it is not only the
right of that individual that is being violated, but also the right of all
others to "receive" information and ideas.
The right protected by Article 13 consequently has a special scope and
character, which are evidenced by the dual aspect of freedom of expression.
It requires, on the one hand, that no one be arbitrarily limited or
impeded in expressing his own thoughts. In
that sense, it is a right that belongs to each individual.
Its second aspect, on the other hand, implies a collective right to
receive any information whatsoever and to have access to the thoughts expressed
by others.[5]
5. The Government's act
of seizing and banning the books has the effect of imposing "prior
censorship" on the freedom of expression and therefore has violated the
two-fold aspects of the right to receive and impart information to
"everyone" both within and outside of the community, regardless of
frontiers as provided by Article 13 of the American Convention.
The Government has not shown how the contents of the books fall within
the exception, "respect for the rights or reputations of others;" or
"the protection of national security, public order, or public health or
morals," as provided by Article 13 of the American Convention.
6. Moreover,
the Government of Grenada has not presented any arguments to the Commission
demonstrating that the banned books, The Struggle is My life, by Nelson
Mandela; Maurice Bishop Speaks; The Grenada Revolution 1979-1983; Nothing
Can Stop the Course on History; An Interview with Fidel Castro by U.S.
Congressman, Mervyn Dymally, and Jeffrey M. Elliott; One People, One
Destiny; The Caribbean and Central America Today; edited by Don
Rojas; Malcolm X Speaks; and a personal copy of the mystery novel, Our
Man in Havana, by Graham Greene which was taken from Meryl Lynn Farber,
violated the respect for the rights or reputations of others; or the protection
of national security, public order, or public health or morals and therefore,
"shall be subject to the imposition of liability," expressly
established by law to the extent necessary to ensure protection of such rights
pursuant to the exceptions referred to in Article 13 (2) of the American
Convention.
7. On this issue the
Inter-American Court of Human Rights stated further that:
In its individual dimension, freedom of expression goes further than the
theoretical recognition of the right to speak or to write.
It also includes and cannot be separated from the right to use whatever
medium is deemed appropriate to impart ideas and to have them reach as wide an
audience as possible. When the
Convention proclaims that freedom of thought and expression includes the right
to impart information and ideas through "any ...medium," it emphasizes
the fact that the expression and dissemination of ideas and information are
indivisible concepts. This means
that restrictions that are imposed on dissemination represent, in equal measure,
a direct limitation on the right to express oneself freely. The importance of the legal rules applicable to the press and
to the status of those who dedicate themselves professionally to it derives from
this concept.[6]
In its social dimension, freedom of expression is a means for the
interchange of ideas and information among human beings and for mass
communication. It includes the
right of each person to seek to communicate his own views to others, as well as
the right to receive opinions and news from others. For the average citizen it is just as important to know the
opinions of others or to have access to information generally as is the very
right to impart his own opinions.[7]
8. Based on the
exposition above, the Commission finds that the Government of Grenada violated
the rights of the petitioners to "freedom of thought and expression,"
when it seized and banned the books belonging to the petitioners.
The two dimensions referred to by the Inter-Ámerican Court in (supra 30)
of the right to freedom of expression must be guaranteed simultaneously.
"One cannot legitimately rely on the right of a society to be honestly
informed in order to put in place a regime of prior censorship for the alleged
purpose of eliminating information deemed to be untrue in the eyes of the
censor. It is equally true that the
right to impart information and ideas cannot be invoked to justify the
establishment of private or public monopolies of the communications media
designed to mold public opinion by giving expression to only one point of
view."[8]
The petitioners' right to transport the books to Grenada and the right to
receive such books in Grenada are protected by Article 13 of the American
Convention.
9. Article
2 of the American Convention provides that: "Where the exercise of any of
the rights or freedoms referred to in Article 1 is not already ensured by
legislative or other provisions, the States Parties undertake to adopt, in
accordance with their constitutional processes and the provisions of this
Convention, such legislative or other measures as may be necessary to give
effect to those rights or freedoms."[9]
Therefore, the Grenadian Government must ensure that its Legislation
complies with the provisions of Article 13 of the American Convention. THE INTER-AMERICAN COMMISSION
ON HUMAN RIGHTS, FINDS THAT:
1. The "right to
freedom of thought and expression" of the petitioners has been violated by
the Government of Grenada. This
right to "freedom of thought and expression" is one which is contained
in Article 13 of the American Convention on Human Rights.
2. The Government of
Grenada must lift the ban on the books which remain under the banning order.
3. The Government of
Grenada must adopt the necessary measures to ensure that its Legislation is
brought into conformity with Article 13 of the American Convention on Human
Rights.
4. Publish
this report in the Annual Report to the General Assembly.
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