EDITOR, The Tribune.
Please permit me to offer a few comments with respect to the offence referred to in The Bahamas Penal Code as “Unlawful Assembly” as well as offer a brief commentary on The Minister of National Security and The Attorney General’s protestation on public assertions/suggestion that the detention of members of The Democratic National Alliance (DNA) by the police was politically motivated.
Before I do, however, let me say at the outset that as much as I detest the need for an individual or group to seek the police permission to peacefully assemble, I am of the view, and perhaps to the disagreement of many, that the Democratic National Alliance (DNA) ought to have requested permission to assemble as they did.
And I only hold this view because it’s the law.
Notwithstanding the above comments, I am also of the view that the police could have exercised more judicious discretion and dealt with this matter differently, without being accused of compromising or avoiding its duty to enforce the laws no matter ones station in society.
If and when there is an obvious breach of the law, as the commissioner has alluded (pushing against officers), then police ought to act swiftly in its enforcement.
I will say nothing further on that matter as it is still under active investigation – so we are told.
I now turn my attention to the relevant provision in the penal code which speaks to the offence of “unlawful assembly”.
The relevant portion of the statute reads in part:
“An unlawful assembly is an assembly of three or more persons, who, with intent to carry out any common purpose, assemble in such a manner, or so conduct themselves when assembled, as to cause persons in the neighbourhood of such assembly to fear, on reasonable grounds, that the persons so assembled will disturb the peace tumultuously, or will, by such assembly, needlessly and without any reasonable occasion provoke other persons to disturb the peace tumultuously”.
I will cede that the purpose of this legislation is noble in its objective and at times can be of assistance to the police in maintaining public peace and good order.
However, its execution and use can be fraught with danger as it is open to abuse by a government who meddles into the police force or one whose intent is malicious.
For the sake of clarity and the avoidance of doubt, I am not suggesting that the commissioner or any police officer had or have a malicious intent in the execution of their duties.
I share the view of many, who have opined that the offence of unlawful assembly, which is enshrined in the statute laws in many jurisdictions is a bastardisation of the right to free speech and assembly and it has the potential to suck the life and vibrancy out of free speech, particularly in light of the vast discretionary powers it concedes to the police and its susceptibility to political abuse.
In the name of public order, the police are invested with broad powers to silence or curb any group of individuals who seek a public forum or space to assemble to voice their opinion.
The police only needs to cloak its decision in that opaque basket called “in the interest of public peace, order or security”.
The police, as the commissioner so boldly declared, can even choose to act 12 months after an unlawful assembly. This discretion to act as and when law enforcement pleases is precisely what contributes to the toxicity of this law in a democracy.
I hold strongly to the view that in a healthy, active and involved democracy, citizens ought to be given a public space to peacefully and civilly voice their displeasure of or towards their government or elected representatives.
More often than not, groups which are subjected to the unpleasant weight of this offence are groups which are usually in opposition to the government or are representative of a minority class which lacks political or economic influence.
Individuals participating in such demonstrations are usually only seeking a just application of the law or a fair distribution of the state resources or equal access to opportunities controlled by the government.
In my view, the police authorities ought to reasonably expect that these persons would want to voice such displeasure or disapproval in a vicinity or public space where they will be seen and/or heard by their elected representative.
They ought not to be unreasonably denied the opportunity to do so, no matter how loud and annoying we may find or anticipate their cry might be. It is always better in a vibrant democracy to err in the interest and on the side of responsible free speech.
Usually, in the aftermath of an arrest or detention under this toxic piece of legislation, the police are usually accused of acting on the instructions of politicians.
These accusations become more believable when it can be observed that this law is mostly enforced only when demonstrations or protests are directed at the government or elected representatives.
You seldom see an arrest for unlawful assembly if the protest or demonstration is directed at non state entities or private actors.
The political actors, as we have observed, will usually push back on such assertions and deny any suggestion of political meddling.
The Attorney General and the Minister of National Security in the case involving the DNA did exactly that in various news reports.
While such denial may be grounded in facts, however, when trust and creditably is lacking or lost, such denial becomes muffled and empty.
In my opinion, notwithstanding their loud denial, I am comfortably satisfied that there is political meddling and interference in the uniform branches in this country.
It may or may not have been so in the DNA matter, but I am satisfied that generally there is meddling and interference by political actors in the uniform branches.
This has always been the case and this meddling and interference by politicians persist throughout the public service.
Both of these ministers in their denial went on to proclaim, or suggest that every citizen in this country is “subject to the rule of law”.
They are correct in that we are all subject to the rule of law, but I strongly doubt, any of them can seriously say that “every citizen in this country is equally subjected to the rule of law”.
CLAUDE B HANNA
March 24, 2021.