Crime and Punishment - Criminalising Protest
|The first duty of law enforcement should be to ensure that protests and demonstrations proceed peacefully so that people are free to express themselves by peaceful means, not to disrupt them or to arrest those taking part|
A new Era of RepressionIt comes as no surprise that authoritarian countries such as China and Russia have cracked down hard on protesters. Hong Kong is already feeling the effects of China’s National Security Law of June 2020. Under the law protesters can be gaoled for 3 years to life for subversion, secession or collusion with foreign forces. Beijing has granted itself the right to hold trials in secret, with handpicked judges and without a jury and with difficult trials being held in Beijing rather than Hong Kong. Hundreds have already been arrested. Many others have left.
The United Kingdom
On the 24th June, 2022 Tasmania became the latest Australian state to pass tough new legislation targeting protestors. Under the Police Offences Amendment (Workplace Protection) Bill obstructing the passage of vehicles or pedestrians on a public street can now set you back between $519 and $1,730, while obstructing a business will cost you $8,650 or up to six months in gaol. Causing any risk to the safety of others or one's self increases the fine to $12,975-or 18-months’ gaol, rising to $21,975 or two and a half years in prison for a second offence. Organisations charged with obstruction can be fined $103,800. The main targets in this case are forest protesters trying to save the last of our species – rich old growth forests and those who are protesting the intrusion of mining into hitherto unspoiled areas of temperate rainforest.
According to Kieran Pender Senior Lawyer at the Human Rights Law Centre,
“This draft law is unnecessary and undemocratic. Any law that threatens to chill the fundamental democratic freedom to protest must be necessary, proportionate and subject to sufficient safeguards and oversight. The proposed law does not meet these criteria and should not become law.”
It’s the fourth time this Bill has been tabled in Parliament but with some modification so that homeless people would not be caught up in it, it has now been passed by the Upper House and will become law when it returns to the Lower House.
In New South Wales the new laws are mainly about not stopping fracking, new coalmines and exploration. The state passed legislation in 2019 for fines up to $22,000 and up to two years in prison. Of particular concern to Civil Rights groups is the fact that the Bill gives increased powers to police to stop, search and detain protesters without a warrant and without any increase in judicial oversight. The penalties for trespass or those who “interfere with a business” have been increased to $5,000 or two years’ gaol, and those who “interfere with a mine” including exploration activity (legal or not) are liable for up to seven years in prison. While these currently apply to major ports, they also include roads, rail lines, bridges and industrial sites. It's not just about environmentalists either – prison guards, teachers and rail workers are are being threatened with similar penalties.
Queensland ‘s 2019 anti-protest laws have also been labelled an infringement on the right to freedom of expression and assembly. As Alice Drury, spokesperson for the Human Rights Law Centre says, “ … Politicians may disagree with protester’s views on a particular issue, but shutting down peaceful assemblies on serves to weaken our democracy.”
Even the UN has come out against Western Australia’s 2016 anti-protest legislation because “... it would dramatically reduce legal rights to protest “lawful” activity such as logging and development.” It also removes the burden of proof and the presumption of innocence. Its penalties include fines of up to $24,000 and two years in gaol. According to the UN Special Rapporteurs,
"The Bill would criminalise a wide range of legitimate conduct by creating criminal offences for the acts of physically preventing a lawful activity and possessing an object for the purpose of preventing a lawful activity,” the three rapporteurs said.
“For example, peaceful civil disobedience and any non-violent direct action could be characterized as ‘physically preventing a lawful activity'."
They fear that the legislation would have "the chilling effect of silencing dissenters and punishing expression protected by international human rights law."
"It discourages legitimate protest activity and instead, prioritises business and government resource interests over the democratic rights of individuals."
The state of Victoria also passed anti protest laws in May this year which would see protesters who oppose the clearing of native forests fined up to $21,000 or gaoled for up to 12 months.
Amnesty International considers it of grave concern that Australia doesn’t have a Human Rights Act under which prosecutions under these laws could be challenged. Nor is there a Federally recognised right to protest. Indeed, even the freedom of speech, though implied, is not explicitly protected.
To support protesters already gaoled in NSW, click here
Canada is also going down the path of criminalising protests, and it is generally left to police to decide whether a protest is peaceful or not. Whether it’s an environmental protest by First Nations people protesting a pipeline crossing their land or a peaceful picket line in front of a corporation, police are increasingly being called not to ensure the protest proceeds peacefully, but to disrupt and arrest protesters.
The USA, once the home of the free and which has the right to free speech and assembly enshrined in the First Amendment of its Constitution, has introduced no less than 82 bills in 34 states which range from criminalising protests to permitting protesters to be harmed without consequence.
While 2021 has been a record year for the passage of such legislation, there has been a steady erosion of rights since the first pipeline clashes between 2016 -2017. However the process has been greatly accelerated by the passage of the American Legislative Exchange Council’s (ALEC) – a pro – business group, Critical Infrastructure Act in 2018 which is designed to protect the oil and gas industry and makes it a criminal offence to encroach on critical infrastructure and penalises with heavy fines any organisation which aids protesters . This model legislation has been circulated to a number of states and 17 have already passed such laws. Although Minnesota has not yet done so, almost 900 people have been arrested for protesting against the construction of the Line 3 Pipeline in that state.
Latin America, which has had a long history of street protests is also facing a battery of new anti – protest laws. In Mexico for example, there have been 17 local and federal initiatives over the past two years to crack down on protesters. Under innocent sounding pretexts such as ‘ preventing obstruction’ or “ensuring public peace, safety and order,’ local police, state police and sometimes military forces are given broad but undefined powers to arbitrarily arrest, use force and often deadly force to disrupt such protests. In Venezuela as of 2015, the Ministry of Defence is empowered to control public order. In Brazil the crime of conspiracy has been used to arrest protesters such as the 190 people taking part in a teacher’s strike in Rio de Janiero in 2013. In Venezuela it was invoked to charge a union secretary for leading a strike. In some instances plain clothed police have deliberately infiltrated groups in order to provoke violence and thus ensure demonstrations are violent enough for police or armed forces to use the full force of the law.
Peru has labelled demands made through protest the crime of 'extortion.' If such protests involve occupying premises, obstructing transport or the functioning of public services, protesters can expect between 5 and 10 years in prison, rising to 25 years if 2 or more people are involved.
Click here for more on Latin America.
Many African nations are increasingly using vague and broad powers conferred under anti -terror laws against civil society to repress legitimate protest. Both Egypt and Algeria (2018) for example, have used them against human rights defenders, with some being subjected to long periods of pre -trial detention and long prison sentences.
Ethiopia, Kenya and Sudan have used such laws to restrict non – government organisations and Senegal, which recently passed two new laws, jailed two Members of Parliament for calling for democracy. Repression has increased in a number of other African countries too. Read more here
India and Pakistan
India's 2019 Unlawful Activities (Prevention) Amendment Bill (
2019) gives it the power to designate any individual as a terrorist before being
proven guilty with the onus being on the accused to prove their innocence. Many
journalists and protesters have already been detained or charged under this law
and it has been criticised for being in violation of the Human Rights Declaration and the International Covenant on Civil and Political Rights, as well as being misused to silence dissent,
target minorities and political opponents. See more here. Pakistan has also used anti - terror laws to restrict peaceful protest. Read More about other countries here.
Fortunately, except for Turkey most European countries continue to respect the right to peaceful protest though it has become restrained in Spain, Hungary and the Netherlands and France has been accused of using excessive force to curb protest.
Increasing use of Excessive or Lethal Force
While the role of law enforcement should be to prevent violence and to protect protesters, the use of unlawful and lethal force has also been documented in a number of other countries. In Iran and Iraq for example, it has caused the deaths of hundreds of protesters.There have also been reports of police using violence against protesters in at least 40 US states and the district of Columbia, yet prosecutions against police or others who have injured or killed protesters have been slow, minimal or non -existent.The acquittal of Illinois gunman Kyle Rittenhouse who killed two protesters and injured another in Wisconsin in 2020, being a case in point.
If any more proof were needed that America has gone
completely mad, three states -Iowa, Florida and Oklahoma have now passed laws
making it OK to run over protesters and at least three other states are considering doing the same.The Oklahoma Bill also stiffens penalties for protesters who block streets.