The Right to Peacefully Protest

peaceful protest

Many would regard the right of peaceful protest, in the form of marches, placards and public speeches, as the cornerstone of any healthy democracy. And they would be right.

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One therefore expects that right to be entrenched in the Constitution, and again, you would be right. Article 40.6 says:

6.1° The State guarantees liberty for the exercise of the following rights, subject to public order and morality:

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i. The right of the citizens to express freely their convictions and opinions.
The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.

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The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.

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ii. The right of the citizens to assemble peaceably and without arms.
Provision may be made by law to prevent or control meetings which are determined in accordance with law to be calculated to cause a breach of the peace or to be a danger or nuisance to the general public and to prevent or control meetings in the vicinity of either House of the Oireachtas.

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iii. The right of the citizens to form associations and unions.
Laws, however, may be enacted for the regulation and control in the public interest of the exercise of the foregoing right.

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2° Laws regulating the manner in which the right of forming associations and unions and the right of free assembly may be exercised shall contain no political, religious or class discrimination.”

What is disconcerting, however, particularly for a right often described as ‘fundamental’, is the number of caveats to that right, as I have highlighted above in bold.

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It is correctly stated that for every right there should be, and usually is, a corresponding duty, and here one could argue that it is the duty of the protesters to remain within the law.

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However, what does ‘public order and morality’ mean? It is a very vague term, and the sad truth is that it ends up meaning whatever the authorities want it to mean.

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How many peaceful protests have been broken up on the grounds that they ‘undermine public order’?

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And what about ‘undermining the authority of the State’? Surely the whole point behind the vast majority of public protests is to highlight the lack of moral authority on the part of the State in its dealings with its citizens? Is it for the State (read government of the day) to declare that its authority is being undermined and on that basis declare a protest unlawful?

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Similarly, what are the chances that a thousand voices raised in unison (“give me a ‘yes’!”) constitutes a ‘breach of the peace” or that thousands of bodies in O’Connell Street constitutes “a nuisance to the general public”?

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And finally, surely the most effective protests have been the ones that end up outside the Oireachtas?

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It’s a wonder we can protest at all!

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Whilst one can understand the need to regulate protest marches in city centres so as to ensure the effective functioning of that city, at what stage does regulation become prohibition? For example, if farmers drove many tractors into the city centre with the express purpose of disrupting the flow of traffic in demand for a better deal under CAP, surely the only reason they would be listened to is because of their threat to shut down the city? If such a threat is unconstitutional, the effectiveness of the protest is sabotaged at inception. One could argue that the absolute prohibition of the right to protest is unconstitutional, but the Constitution itself seems to provide the basis for such a prohibition.

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What is equally surprising is that this ‘fundamental’ right has never been directly considered by the Supreme Court in this country. The Supreme Court made oblique references to the right in Dunne v Fitzpatrick [1958] I.R. 29 (picketing in breach of the Trade Disputes Act was not protected by Article 40.6) and D.P.P. v Kehoe [1983] I.R. 136 (violent attack on police not protected by Article 40.6).

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The subjective nature of the wording used in Article 40.6 raises the worrying possibility that the person or body who decides whether any protest is acceptable or not is the very person or body that the protest is aimed at in the first place, namely the executive (‘the government’). And that is exactly why one would expect the courts to look at these questions very carefully and interpret the law very strictly against any executive excess, as they are tasked with safeguarding what is recognised as being a fundamentally important right in any democratic society.

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It is against this backdrop that I propose to consider two ‘incidents’ that occurred in connection with the current protests against the installation of water meters by GMC/Sierra Limited on behalf of Bord Gáis / Irish Water, namely the injunction handed down by McCarthy J. and the arrest of Councillor John Lyons.

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Mr Justice McCarthy granted an interim injunction after watching videos of protests and finding “apparent unlawful conduct” had taken place. As I have not seen the videos I must assume that criminal conduct did in fact take place. The obvious question then is why were the offenders not immediately arrested for their criminal conduct, rather than an injunction being sought against them? A person has the right to protest, but he or she does not have the right to engage in criminal behaviour. The first is protected (sort of) by the Constitution, the latter is not. However, by pursuing an injunction rather than laying a complaint with the Garda about criminal acts, Irish Water are in fact intimidating anyone who might want to take part in a lawful (peaceful) protest. Should the judge not have said ‘that is not my job, take it to the Garda as they must keep our streets safe’?

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Judge McCarthy then issued a general injunction that restrained anyone with knowledge of the making of his order from assaulting, harassing, intimidating, endangering or otherwise unlawfully interfering with or obstructing the workers.

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Again, why is this necessary when all of those things are already criminal offences? If a person assaults or harasses another person, he or she must be arrested for that in terms of the criminal law. Why is it necessary for a judge to issue a general injunction stopping people from doing something that they are not allowed to do in the first place if not for its effect on future protestors, irrespective of whether they intend to protest lawfully or not?

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The public justifiably perceive this as an intimidation tactic orchestrated by the executive and being supported by the courts. That is not a healthy message from a legal system that needs public acceptance and credibility in order to function. It undermines that all-important separation of powers so critical to a democratic society, especially in this country at the moment where the executive effectively controls the legislature. The courts are the last bastion against the excesses of an autocratic executive and judges need to take on that role rather than pandering to the executive.

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Moving on to the arrest of John Lyons.

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The Public Order Act (full title: Criminal Justice (Public Order) Act, No. 2 of 1994) is an extremely controversial Act with many commentators questioning its constitutionality, as it seems to undermine the rights granted by Article 40.6.

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Some explanation is needed here. In our law we have something called ‘the presumption of constitutionality’ which means that any statute passed by the Oireachtas is presumed to be compatible with the Constitution until somebody proves that it is not. It also means that when the courts interpret a statute they will interpret it in such a way that it is compatible with the Constitution. Of course, if the statute is so awful it simply cannot be saved the (High or Supreme) court will declare it unconstitutional.

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As the Public Order Act has not been declared unconstitutional, the courts should interpret its provisions very strictly and narrowly in order that it cannot be used to unreasonably restrict the rights granted to citizens to protest peacefully.

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Section 5 of the Act makes it an offence for any person in a public place to engage in “offensive conduct”, which means “any unreasonable behaviour which, having regard to all the circumstances, is likely to cause serious offence or serious annoyance to any person who is, or might reasonably be expected to be, aware of such behaviour”. This is possibly the most constitutionally suspect of all the sections as clearly freedom of speech does not exist if we are not allowed to seriously annoy people! In any event, John Lyons could not have been arrested under this section alone as it requires an arrest warrant.

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Section 6 of the Act (1) makes it an offence “for any person in a public place to use or engage in any threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace may be occasioned.”

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Now, I have watched the video of the arrest of Mr Lyons a number of times and one thing he was not, was ‘threatening, abusive or insulting’. He was very polite, albeit insistent, and was engaging the guard in a conversation which I could not even describe as heated, so mild was its tone.

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The phrases “made by law” or “save in accordance in law” as they appear generally in the Constitution refer only to laws which do not allow “methods which ignore the fundamental norms of the legal order postulated by the Constitution” (see King v. Attorney General [1981] I.R. 233, 257). In other words, a statute which seeks to regulate a constitutional right cannot be used to undermine that right.

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As was held by the US Supreme Court in the very famous case of Termeniello v. Chicago (1949) 337 U.S. 1, a speaker was arrested and convicted for breaching the peace after referring to members in the crowd as ‘snakes’ and ‘slimy scum’. His conviction was overturned, with the US Supreme Court (Douglas J.) producing a passage which is now a standard text for peaceful protesters everywhere:

“A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute … is nevertheless protected against censorship or punishment unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest”.

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In other words, engaging in lively debate and arguing the toss with a guard is good for our democracy. It should be seen as a sign of health, rather than the basis for an arrest. Quite simply, the arrest was fundamentally wrong in a country that calls itself a democracy. However, without defending the actions of the Guard, it might be argued that he was only acting on the message of political intolerance that was issued with that general injunction.

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Section 8 of the Act merits careful scrutiny. It is titled “Failure to comply with direction of member of Garda Síochána” and says:

(1) Where a member of the Garda Síochána finds a person in a public place and suspects, with reasonable cause, that such person—
(a) is or has been acting in a manner contrary to the provisions of section 4, 5, 6, 7 or 9, or
(b) without lawful authority or reasonable excuse, is acting in a manner which consists of loitering in a public place in circumstances, which may include the company of other persons, that give rise to a reasonable apprehension for the safety of persons or the safety of property or for the maintenance of the public peace,
the member may direct the person so suspected to do either or both of the following, that is to say:
(i) desist from acting in such a manner, and
(ii) leave immediately the vicinity of the place concerned in a peaceable or orderly manner.
(2) It shall be an offence for any person, without lawful authority or reasonable excuse, to fail to comply with a direction given by a member of the Garda Síochána under this section.
(3) A person who is guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding £500 or to imprisonment for a term not exceeding 6 months or to both.

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Having already determined that John Lyons did not contravene sections 4, 5, 6 or 7, it only remains to look at section 9 (“wilful obstruction”) which says that a person shall not “without lawful authority or reasonable excuse, wilfully prevent or interrupt the free passage of any person or vehicle in any public place”.

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This is the crux. Surely protesting peacefully is a reasonable excuse? Mr Lyons can quite clearly be heard saying that he is standing on the pavement and is not in the workplace of Irish Water (as claimed by the guard) as the orange barriers are haphazardly positioned without any clear boundary being formed. For the sake of argument, and in recognition of this fundamental right to protest, could the guard not have moved the barrier to the other side of where Mr Lyons was standing and then proclaim that as being the boundary to the workplace (whatever significance this ‘workplace’ has)?

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And here lies the danger, as I mentioned before: When one gives the executive the power to interpret the law surrounding a fundamental right that was created to keep them in check in the first place, the separation of powers is breached and democracy is in trouble.

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Whilst I have sympathy with the Garda who have to do a difficult and often unpleasant job, it must not be used as an excuse to trample on a very important democratic right. As public servants, the Garda should be trained to do everything in their power to uphold the right to protest, and should only act against a clear and present danger to person or property, infringing on the right to protest only to the extent necessary to safeguard that person or property.

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It reminds me of a situation where there might be a protest numbering thousands of (peaceful) people. On the outskirts of this protest, some criminals are taking advantage of the situation by looting, pickpocketing, assaulting or whatever. Instead of arresting those individual criminals for their criminal acts, the police call on the crowd to disperse as they are a “threat to public safety” or “public order”. It all comes down to the interpretation of the law, and the enforcement of that interpretation. The executive should not be allowed to interpret such a crucial law, only the courts can do that, and the courts have to bend over backwards to ensure the fundamental right to protest is protected against executive encroachment.

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To be fair to the Garda, I have heard a number of anecdotes about the Garda in Waterford escorting Sierra workers off private premises, and the arrest of John Lyons might very well be an isolated exception. Let us hope so.

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As a student in South Africa, and indeed as a young lawyer, I was beaten, whipped, tear-gassed, shot with a water cannon, and fired at with rubber bullets (none finding me, thank God) whilst peacefully protesting against the evils of apartheid. Despite my political beliefs, the fact remained that as a privileged white person I was spared the full terror of a brutal regime. Many less fortunate than me died for the same cause. It was the intensity of those protests by the citizens of South Africa that finally paved the way for democracy in that country. Accordingly, the notion of peaceful protest is something very close to my heart, and I would hate to see it being undermined in this lovely country that I now call home.

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
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