Legal updates and commentary
Will the so-called Anti-Gang Bill before the Jamaican Parliament restrict freedom of expression of our artistes? A lively discussion has started, and I will be looking at its provisions much more closely at another time.
Here are a few preliminary observations however. Societies have often found it necessary to restrict freedom of expression in the interest of the society as a whole and in the interest of vulnerable groups.
Take as one example our Obscene Publications (Suppression of) Act. This prohibits the making or producing of obscene writings drawings and other materials for trade distribution or public exhibition.
In the United Kingdom, the Public Order Act 1986 prohibits the display of written material which is “threatening, abusive or insulting” if one intends to stir up racial hatred or if racial hatred is likely to result.
The fact that restrictions on the right to freedom of expression may be necessary is recognized in the
International Covenant on Civil and Political Rights in Article 19, which deals with freedom of expression, and states that:
19 (2). Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
(3). The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.”
Now let’s take an actual look at some of the provisions in the Bill (as opposed to listening to people who haven’t read it talking about it). its actual name is the Criminal Justice (suppression of Criminal Organisations) Act 2013.
Criminal activity is defined as the “planned ongoing, continuous or repeated participation or involvement in any serious offence.”
A criminal organization is defined as “any gang, group, alliance, network, combination or other arrangement among three or more persons (whether formally or informally affiliated or organized and whether or not operating through one or more bodies (corporate or other associations) that:
(a) has as one of its purposes the commission of one or more serious offences and
(b) in relation to which the persons who are a part thereof or participate therein (individually jointly or collectively)
(i) have engaged in unlawful activity in order to obtain directly or indirectly a financial or other material benefit or to gain power or influence or
(ii) issue threats or engage in conduct to create fear or to intimidate or to exert power or influence in communities or over other persons.”
Our own Charter of Rights contains a provision seen in constitutions of other countries, namely that Parliament may pass no law to infringe the rights set out, including the right of freedom of expression “save only as may be demonstrably justified in a free and democratic society.”
In other words, any attempt to limit the rights and freedoms guaranteed in the constitution must meet the test of being “demonstrably justified in a free and democratic society.” This is a provision that has been tested in court in different jurisdictions (and I’ll try to look at some of the resulting court decisions in another blog post). The relevant provision of the Anti-Gang Bill will therefore have to be examined in that context.
The controversial provision is section 15 (1) which states that
“A person may not use a common name or identifying sign, symbol, tattoo or other physical marking, colour or style of dress or graffiti or produce record or perform songs to promote or facilitate the criminal activity of a criminal organization.”
While we do need to look more closely at the provisions, and what has happened in other countries, it is clear that songs generally talking about Jamaica’s gun culture, for example, and yes, Bob Marley’s “I shot the Sheriff” will not be caught by the provision. The song would have to be promoting or facilitating the criminal activity of a criminal organization. Do we think it would be unjustified to ban such a song?
Sure, we need to look at the Bill closely, and see if any of the provisions are problematic in their wording or likely effect, but how about we calm down first? Freedom of expression is not absolute. Do you really think it should be?