Criminalizing Dissent in Post-Democratic Societies

Since his election in late 2018, commentators have expressed deep concern at the threat posed to democracy by Brazil’s far-right president, Jair Bolsonaro, including how his presidency will affect environmentalists, indigenous people and workers’ movements in Brazil and across Latin America. Among other things, Bolsonaro promised during his campaign for the presidency to banish political rivals from Brazil. Branding them ‘red outlaws’, he said that “Either they go overseas, or they go to jail”. The background to Bolsonaro’s election is now familiar. Promises to purge the state of a corrupt political class, to tackle violent crime, and fix a faltering economy are hallmarks of conservative-right rhetoric in the current conjuncture. Indeed, these issues featured in the Trump campaign in the United States, and to some degree in the run-up to Brexit in the United Kingdom. Both the Trump and Brexit campaigns also had antagonism to migrants as their centrepiece.

Similarly, in Australia, concern over immigration, or, more specifically, the unauthorized arrival of ‘boat people’, has sparked punitive political responses over many decades, and not just from conservative parties but the Australian Labor Party, too. So, in a country that is relatively insulated from many of the woes outlined above, we also see, somewhat surprisingly, not only the criminalization of refugees and asylum seekers but also the criminalization of those who raise concern at their mistreatment. In this case, the ‘criminalization of dissent’ is enshrined in Part 6 of the Australian Border Force Act 2015 (Cth), which prohibits the disclosure of information by would-be whistleblowers as to conditions in Australia’s offshore processing facilities on Manus Island (Papua New Guinea) and in Nauru. While recent amendments now exempt medical professionals, such as doctors, from the ‘secrecy provisions’ of the Border Force Act, advocates remain concerned they could still apply too broadly to non-health professionals, including teachers and social workers.

When she was President of the Australian Human Rights Commission, Gillian Triggs described the secrecy provisions under the Border Force Act as one element in the Australian government’s ‘ideological assault’ on advocacy, whistleblowing and speaking out. Similarly, on a two-week visit to Australia in 2016 to meet human rights defenders, UN special rapporteur, Michel Forst, identified hundreds of secrecy laws that act as gags on civil society groups and whistleblowers[, including those contained in the Border Force Act, as well as in state anti-protest laws, such as in New South Wales, where environmental protestors who lock-on to mining equipment face jail terms of up to seven years.

Just as Bolsonaro seeks to harness police authority to implement his political agenda, so criminalizing dissent is often accompanied more broadly by the enhancement of police powers. In certain contexts, such as the policing of protest at international ‘mega-events’, such as G20, WTO and APEC summits, or major sporting events, like the 2016 Rio Olympics, police are granted extraordinary powers to control protest in urban spaces using surveillance and other pre-emptive measures. In an effort to neutralize police control, protestors use their own forms of counter-surveillance, frequently employing mobile phone cameras to capture instances of police brutality and other forms of misconduct. However, in what surveillance scholar, Gary T. Marx, identifies as the ‘coevolution of tactics’[1] between police and protestors, many police forces worldwide now provide officers with body-worn video cameras, which, like the devices used by protestors, act as both deterrent and as a source of ‘digital evidence’ should the need arise in court proceedings. The advent of digital technologies and social media where ‘citizen journalists’ find it relatively easy to post incriminating footage of policing at protest events has caused some governments to extend the criminalization of dissent to the filming of police and police operations.

In the United States, for instance, the question of whether the First Amendment to the Constitution (guaranteeing freedom of speech and the right to peaceable assembly) extends to rights to surveil police was raised after a federal judge ruled that the First Amendment does not protect a right to take photos or record videos of police, unless filming is done in the ‘spirit of protest’. That decision echoed previous proposals drafted in California to protect citizens recording or photographing police actions, as long as they do not prevent officers performing their duties. However, the decision diverged from plans subsequently drafted in Arizona to make it illegal to shoot close-up videos of police on the grounds that it would distract officers engaging with suspects, and thus put them in danger.

The filming of police by ordinary citizens came to the fore with the Black Lives Matter movement in the United States, although tactics of state agents here were far more underhand. In an open letter[, a group of 40 documentary filmmakers wrote to the US Department of Justice after it was revealed that citizen journalists involved in the Black Lives Matter movement who filmed black people being shot by police were subsequently harassed and targeted by law enforcement agencies clearly intent upon supressing footage, intimidating witnesses, controlling stories, and covering up police misconduct.

Sometimes considered a stand-alone right, the ‘right to protest’ is in fact an amalgam of the right to free speech and the right to assemble peacefully in public. And while it has been recognized in law to varying degrees across jurisdictions, the recent developments discussed above indicate it is increasingly under attack, even in societies that are ostensibly democratic in nature. What this tells us about the rule of law and status of democracy is disturbing and perhaps more in tune with what Colin Crouch refers to as ‘post-democracy’, which describes “a situation where all the institutions of democracy – elections, changes of government, free debate, rule of law – continue, but they become a charade, because democratic institutions have been surpassed as major decision-making entities by small groups of financial and political elites“. Ironically, then, while populist politicians are elected on a mandate to rid the state of corruption, if the post-democracy thesis holds true, ultimately they will only replace one corrupt system with another.


References

[1] Marx, G. (2009). “A tack in the shoe and taking off the shoe: Neutralization and counter-neutralization dynamics”. In: Surveillance & Society 6(3), pp. 294-306, p. 299.


Greg Martin’s work addressing issues contained here include, among other publications:

Martin, G. (2019): Crime, Media and Culture. Abingdon: Routledge.

Martin, G. (forthcoming, 2019): “Turn the detention centre inside out: Challenging state secrecy in Australia’s offshore processing of asylum seekers”. In: P. Billings (ed.), Crimmigration in Australia: Law, Politics and Society. New York, NY: Springer.

Written by

Greg Martin is Associate Professor of Socio-Legal Studies at the School of Social and Political Science, University of Sydney, Australia. In 2017-2018, he was a Distinguished Research Fellow at the WZB Center for Global Constitutionalism.
Website at the University of Sydney

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