Restriction on the Right to Assembly3187 09 Aug, 2012
Mr. Nandlall: Thank you very much Mr. Speaker. This motion raises the very important issue of the fundamental right to assemble; a right which is guaranteed by our Constitution as a fundamental right and finds expression in Article 147.
I have listened to the mover of the motion, as well as, to the Hon. Member who just spoke and emphasis is deliberately placed on only one aspect of the Constitutional provision, that is the one that essays the right. However, every right has limitations and so does Article 147. Article 147 says, when it declares what the right is, it continues to say that:
“Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this article 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 rights or freedoms of other persons;”
Like every other right, Article 147, the Constitution itself, imposes a restriction. And there is a rational for these restrictions and the rational is, it is important and it is important that I put on the record what the philosophical rational is, Justice S.Y. Mohamed in his text, “Fundamental Rights and Freedoms of the Commonwealth Caribbean” at page 7 and if you permit me Sir, I will read briefly from it, under the heading, “Fundamental rights and freedoms are not absolute” it says this:
“Fundamental rights and freedoms are not absolute or unqualified. Absolute or unrestricted rights and freedoms do not exist in a civilised society; they are the law of the uncivilised. If everyone is to have absolute and uncontrolled rights and freedoms there would certainly be chaos and disorder. There would always be a conflict of interest. There must be a limit to rights and freedoms, if the rights and freedoms of others and the interest of the community are not to be contravened. Man, by entering into society surrenders some of his natural liberty as a price for the benefit which he obtains as a member of society. A man’s fundamental rights and freedoms must therefore not violate the fundamental rights and freedoms of others.
This was eloquently put in another way by Chief Justice of India, Teja Singh Injang Mahador against the principal of Mahendra College, when he said that the right to move freely throughout the territory of the union of India did not confer the right to walk over other people’s property. In England a man is free to develop his own personality to the full and the only duties which restrict his freedom are those which are necessary to enable everyone else to do the same.
I would like quickly also to refer to another dictum, again from India, the case of A.K. Gopalan Vs. The State of Madras, Patanjali Sastri says, “Liberty” says John Stewart Mill:
“...consist in doing what one desires, but the liberty of the individual must be thus far limited. He must not make himself a nuisance to others. Man as a rational being desires to do many things, but in a civilised society his desires have to be controlled, regulated and reconciled with the exercise of similar desires by other individuals. Liberty has therefore to be limited in order to be effectively possessed.”
One last quotation and that is from the great Chief Justice of Trinidad and Tobago in the case of Collymoore Vs. The Attorney General of Trinidad and Tobago. Sir Hugh Wooding was speaking about a case involving freedom of assembly and association and this is what he said:
“My observation is that individual freedom in any community is never absolute, no person in an ordered society can be free to be antisocial. For the protection of his own freedom, everyone must pay due regard to the conflicting rights and freedoms of others, if not, freedom will become lawless and ending anarchy. Consequently, it is and has been in every ordered society always being in the function of the law to regulate the conduct of human affairs as to balance the competing rights and freedoms of those who comprise the society.”
It is against that philosophical back drop that we must approach this motion. That is the setting that we must look at the limitations which Article 147 imposes on the right to assemble.
Applying all of that to the case at hand, we have the article saying that nothing done on the authority of any law shall be held to be inconsistent with or in contravention of this article to the extent that the law in question makes provision that is reasonable for public safety, public order et cetera.
The police act under the authority of a law. The law which the police act under is the Police Act Chapter 16:01, Laws of Guyana. Subsection 2 of the Act says:
“The force shall be employed for the prevention and detection of crime, the preservation of law and order, the preservation of peace, the repression of internal disturbances, the protection of property the apprehension of offenders...” etc
Those are the relevant parts. Then specifically, section 27 says this:
“Notwithstanding any other act, any officer, inspector or subordinate officer may, if he considers it necessary so to do for the maintenance and preservation of law and order or for the prevention or detection of crime, erect or place or cause to be erected or placed, barriers in or across any road, street or any public place, within Guyana in such a manner as he thinks fit.”
“(2) any member of the force may take all reasonable steps to prevent any vehicles being driven pass such barriers and any driver of any vehicle who fails to complies with any reasonable signal of a member of a force in uniform requiring such person to stop such vehicle before reaching any such barrier, shall be liable on a summary conviction...” etc
And so, you have the statutory bases for the erection and the installation of those barriers. You have the right to assemble, you have the very constitution that gives you the right to assemble - limits that right - and tells you that once a person is acting under the authority of a law then that right can be restricted in the manner provided for in the Constitution and the Constitution says, for the purpose of maintenance for public order. And then you have, I have sighted the law and I have sighted the authority authorised under the law to erect the barrier. That is the situation that is out there.
The police are resided with the discretion at law to determine the situation there, whether a barrier should be there or whether a barrier should not be there. The police has made a decision that the barrier should be there. We in this Assembly must be careful how we interfere with the statutory responsibilities of statutory agencies. If the police and they are the people who are tasked with the responsibility and they have made a determination exercising their technical judgment and discretion that those barriers are necessary. Why would this National Assembly interfere with that technical judgment?
As an Attorney General, I must be concerned because if injury is caused to the people out there and worst yet to any member of the public, the State remains responsible for all civil damages which may flow as a result of the neglect of the police to ensure that the precincts of this Parliament is safe. That is a statutory duty of care, which the police owes to the citizenry as well as to the Members of this Parliament, to the staff of this Parliament, to all the occupants of the public gallery and as well as to the press. That is a responsibility that they owe by law. When they breach that, the Attorney General will be called upon to defend that position in the court. We have to be careful and look at the situation; look at the facts and circumstances that would have informed the police decision to install and erect those barriers.
We have the incident of Father Dark who was stabbed a few yards away, on Brickdam, not very far from this Parliament, while the Parliament was in session. We have the situation where former President Janet Jagan, when she came here to address the Parliament, I believe it was the Seventh Parliament. In her company and in the midst of this Assembly was the then Chairman of Caricom, the then Prime Minister, I believe, of St. Vincent and several dignitaries of Caricom, when the President’s car was stoned by what was described by all the press reports as an unruly mob. The PNC issued a statement, in which they disassociated themselves from the people out there. I make that point because when there is problem, the protesters lose ownership, nobody sponsors them anymore; they are left on their own. That is what happened on the day in questioned out there. The PNC issue a press statement disassociating itself from the violence - the PNC, check back the newspapers.
We also had the funeral of the late President Desmond Hoyte. When the procession was here in the Public Buildings compound we had the most reprehensible and most deplorable and highly regrettable behaviour at the funeral of a late President. We cannot turn a blind eye to these things.
Recently, earlier this year, a bomb exploded somewhere in the vicinity of Stabroek Market, just a few feet away from here. A bomb exploded somewhere right over there. [Mrs. Lawrence: That had nothing to do with Parliament.] It had nothing to do with Parliament but I am explaining to you that the environment out there is not as safe as people think that it is. I am trying to explain the rationale for the barricades.
The Hon. Member Mr. Manzoor Nadir, alluded to the fact that the Parliamentary Management Committee is currently addressing the issues about security in the precinct of the National Assembly. There must be a reason why, because security is high on the agenda. Your Honour wrote a letter earlier this year in which you advised Members, Sir, of an emergency exit in the Parliament Office.
Mr. Speaker: Did I? A memo was issued.
Mr. Nandlall: A memo was issued.
Mr. Speaker: That was following the Guyana Fire Service’s visit to the premises and the Clerk…
Mr. Nandlall: “The Clerk”… an emergency exit… but it brings into question, Sir…
Mr. Speaker: …pointed out that it is a necessary requirement for all public buildings as this.
Mr. Nandlall: Security is high on the agenda of the Parliament Office. Even the authorities which are recited in the WHEREAS clauses of the motion… For example, the Charter of Civil Society for Caribbean Community, it states:
“Every person shall have a right to assemble, demonstrate peacefully and to draw up and present petitions subject to such restrictions as may be imposed by national law in the public interest and which are reasonably justifiable in a free and democratic society.”
The police in this country have chosen to erect that barrier in pursuance to national law. Then there is the recommended benchmark of the Commonwealth Parliamentary Association which states:
“The legislature shall be accessible and open to citizens and media subject only to demonstrate public safety and work requirements”.
Every declaration of rights that you can cite, Sir, will carry a caveat that you need to regulate those rights so as to ensure that there is public safety and to ensure that people, as they seek to enjoy their rights, do not expose others to the undue risk of dangers.
Therefore I will not cite the instance in Trinidad’s Parliament where the Prime Minister of the country was shot… [Mr. B. Williams: That was a coup.] …when there was the coup. Yes, it was a coup and Prime Minister Arthur Napoleon Raymond Robinson was shot that night when they took over the Parliament and several Members of Parliament were beaten with gun butts. That happened right there in Trinidad. I am averting your attention to an extant incident where Parliament and parliamentarians were put at risk because of the failure to have effective safety mechanism out there.
The bottom line is that those things are put there largely for the safety of parliamentarians. I agree that a balance must be struck. I heard my learned friend complained about the 9 o’ clock erection of the barricade and I sympathise with that kind of complaint, but I ask that we do not rush to the other extreme and expose ourselves to the security risks that are going to be posed if Parliament of Guyana is left exposed.
Then we have to deal with the other issue of the Resolve clause that deals with the position of the loudspeakers being erected. That may have been a relevant option and an attractive concept and an effective medium of communication thirty to forty years ago, but I do not think that there is any part of the civilised world where there are loudspeakers erected around a Parliament Office, echoing what we say in here in a booming way. We live in a world that is very conscious of noise pollution. [Mrs. Baveghems: That is not noise pollution.] Yes. We have to keep balancing these interests. Two people may want to hear you but two hundred people do not want to hear you and we have to give effect to that in a democracy.
Then there is the issue of this area. Close nearby there is the court and it is a declared silent zone. Imagine there is loudspeaker, with the melodious voice of Hon. Member Ms. Amna Ally shrilling over the loudspeaker. We have to be weary that we do not create a nuisance to others. My colleague, the Hon. Member Mr. Manzoor Nadir, adverted to several mediums that are affective and that are available. There is the Demerara Wave. There are the other internet radio stations. I am speaking to four cameras. There are cell phones. Mr. Bond is very effective with the cell phone, streaming onto his twitter and to his Facebook page when he speaks. He is reported live on the internet. He presses a button and he delivers his speech, and all his friends on Facebook listen to it. That is what happens in this National Assembly. There are far more sophisticated ways that we can disseminate the information. I understand the general thrust that we need to make our work accessible; I understand that, but we have to find more civilised way and more sophisticated way of doing it. Imagine hearing the Attorney General booming at ten minutes to 2 o’ clock in the morning. We would have got an injunction.
We have to be weary of all of the factors and we must not rush to make decisions about these things. These barricades are not there because it is a Government policy to put a barricade there or that is something that the PPP came up with just like that. Those barricades are there for the safety of us in this National Assembly, for the safety of the other people who wish to come to it. I do not know that there is a policy that excludes people from coming to this Parliament of Guyana. There is a public gallery. Look, at 2 o’ clock, there are still members of the public there. Every day, almost, when I come here, it is packed to capacity. If the motion was intended to convey the impression that Parliament of Guyana is in accessible I would like to reject that notion. If this motion was intended to create the impression that there is any form of interference by the State with people’s freedom of assembly, I wish to reject that notion. I say that we give effect to the spirit and the letter of the Constitution and we keep those barricades, regulate them if there needs to be regulation, if people feel that they are too expansive I suppose that we can draw them closer, but I believe that the barricades are necessary, they are important and they are there for the benefit, safety and security of all of us and for the people of this country.
Thank you very much, Sir. [Applause]
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