THURSDAY, MAY 12, 2011 By NESTOR LAIVIERA
"Immediate events should be handled differently" - PN councillor and gay rights activist Cyrus Engerer
The failure by gay activists and other groups to picket an Evangelist's headquarters under pain of arrest has raised questions about Malta's laws when it comes to the right of assembly to protest.
Criminal law lecturer Dr Stefano Filletti has queried whether the time has come to change legislation in place since the early 1970s, before Malta became a Republic, which empowers the police to arrest groups of people gathered for protests without a permit.
"Has the time come now?" he asks, questioning whether today's Police Force still needs a 48-hour 'forewarning' to properly handle a protest.
It is a question many asked after the police were reported to have preemptively clamped down on a protest last Saturday, much to the consternation of those wishing to voice their anger at what was described as "religious homophobia".
Organised by Nationalist local councillor for Sliema and gay rights activist Cyrus Engerer and others, the protest was prompted by evangelical charismatic pastor Gordon-John Manché's Christian gay 'conversion' event that professed to turn homosexuals straight through faith.
The protest, aiming to picket the event's venue in Żebbuġ and organised on short-term notice through social networking site Facebook, however ran afoul of police procedure when it failed to obtain a mandatory permit that must be applied for 48 hours in advance.
Asked by MaltaToday whether the 48 hour permit 'requirement' can be imposed in such a manner, Filletti was categorical: "Police were completely within their legal remit to inform the protest's organisers that protesters will be arrested", citing the Public Meetings Ordinance.
He added that even if the protestors had obtained the permit, "police are still within their power in calling off a protest if they believe a crime is being committed or if it might get out of hand."
The 48-hour time frame is there to ensure that large gatherings, such as political mass meetings, can be properly prepared for and police officers mobilised in time, Filletti said. "The rule is very necessary for larger demonstrations. For a handful of people, it is less so."
He pointed out that police might also need to involve other entities such as local councils and Transport Malta for example, or issue stop-leave for officers required to ensure proper police presence.
"The law wants to avoid instances where areas or localities are shut down by political meetings or other large gatherings with only a two-hour or three-hour notification," he said. "On the whole, it is acceptable, given that it is very rare that police refuse permits for such gatherings or protests – provided that the law is respected," he said.
He referred to an incident in 2009 where a group of Muslims applied for, and obtained police permission, to hold a public praying gathering on the Sliema promenade. "Police couldn't refuse a permit as they applied in time," he said.
"It has been a long time since permits were refused," pointing out that it might have been more common on the past when permits where withheld to political parties or the Church.
But asked about how the spontaneous Libyan protests were allowed to take place despite not being covered by a permit, Filletti says that there were humanitarian undercurrents which also had to be considered. "While the police could have arrested everyone for protesting without a permit, it didn't," he said.
"I would have found it very odious had they done this," he said. "The police were prudent."
Asked about how he felt about the Police's decision to shut down Saturday's protest however, Filletti said that he would have preferred that outcome to a situation "where 200 or 300 people were running amok without proper police presence".
"It is a balancing act. During the Libyan protests, Police were sensitive to the humanitarian undercurrents. In this case, maybe they weren't as sensitive to the sentiments that the gay 'conversion' event provoked," he said.
Filletti explained that the apparently 'arbitrary' 48 hours' timeframe, along with existing regulations governing protests and public gatherings, is intended to cover all 'types' of gatherings, be they for entertainment, social, political, or activist in nature "in one fell swoop."
Asked whether the law should distinguish between social and political events (ex: a street party and a protest) for the purposes of regulation, Filletti was cautious. "I am not convinced that creating specific laws might solve this issue without creating more.
"The more specific one is when making laws, the more grey areas are created," he said. "Should legislators start specifying and categorising – where does one draw the line?"
"Broad generalised instances are easier to apply than specific categories, as then interpretations come into play as to which category applies when. It is a dilemma that all legislators face."
He said that a point in favour of the current legislation is that "it has endured the test of time during a period full of political chaos," having been in place during the 1970s and 1908s.
He conceded that there were instances when it frustrated demonstrations and the efforts of people who wanted to make their voice heard, "but legislators still do not think it necessary to change it." "No law is perfect," he said. "But yes, it did fail in this instance."
As news of the protest's cancellation due to police pressure spread, many vented frustration at how their felt their freedom of expression curtailed. Filletti however points out that "Every human right has its own limitations."
"They are always balanced with the needs of the community at large," he said. "They (the protestors) have every right to protest, but the State still has the obligation to protect public peace and safety. It is an acceptable limitation to one's right to protest."
Filletti points out that the "thorny issue is where one draws the line."
"Whether the permit time frame is 24 hours, or 48, is a purely administrative issue," he contends "but the notion of having to obtain police permission does not violate one's right to freedom of expression."
He pointed out how throughout the last three decade, there have been no calls for this time frame to change. "Has the time come now?" he asks, questioning whether the Police force still needs 48 hours to get itself organised and ready for a protest.
Speaking to MaltaToday, gay rights activist and protest organiser Cyrus Engerer said that it "understandable that permits are necessary when one is organising a normal protest."
"But when something instantaneous like this takes place, it should be different," he said, referring to the immediacy with which the local Libyan protests unfolded. "They reacted to something that is happening immediately."
"I think that 'immediate events' should be seen different to a planned protest that is 'foreseeable' and not something current," Engerer said. "But I am not a lawyer, so that is my opinion as a citizen."
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