An NGO dedicated to the promotion and safeguarding of LGBTIQ rights in Malta is the latest among a number of organisations to complain about restrictions to freedom of assembly imposed by the police using COVID restrictions in a manner that breaches the Constitution and the European Convention on Human Rights, according to experts consulted by The Shift.

The NGO, Allied Rainbow Communities (ARC), planned to host a vigil in remembrance of a 24-year old gay man named Samuel Luiz, who was beaten to death by a group of people in the streets of A Coruña on 3 July. Despite the NGO’s willingness to ensure that the event would follow all standard COVID guidelines such as contact tracing, social distancing and the usage of face masks, the police force objected to the event via a letter ARC received on 10 July.

Other organisations, including Moviment Graffitti, Repubblika and Occupy Justice as well as the Malta Entertainment Industry Association have questioned whether the police are respecting fundamental human rights when banning protests.

Moreover, the police’s heavy-handed enforcement of legal notices issued by the superintendent of public health in terms of protests and demonstrations contrasts heavily with lax attitudes displayed towards large gatherings held after the Euro 2020 final as well as in clubbing hot-spots such as Paceville.

‘They asked if we’d be carrying placards’

Footage shared widely on social media and news portals from Sunday’s revelry clearly show no social distancing, people not wearing masks and a general disregard for the rules enforced by the legal notices.

When contacted for comment, ARC chairperson Clayton Mercieca expressed the organisation’s disappointment and shock at the letter sent by police inspector Jurgen Vella, which cites legal notice 273 as the reason for the “prohibition” of the event.

The legal notice referred to by the inspector, however, clearly states that “events organised in a controlled manner”, along with weddings and religious events, can still be held as long as there is “strict adherence” to public health standards.

“I was shocked because the first thing the police asked us when we called to inform them of our intent was whether we’d be carrying placards or giving speeches,” Mercieca said.

“To me, this feels like a threat to people who want to raise their voices and be heard. It feels like the authorities want to enforce a blanket ban on everything,” he added, referring to the “double-standards” demonstrated by authorities when it came to the enforcement of the same legal notice in other contexts.

“Roads were closed so Ħamrun supporters could celebrate their win a few weeks ago. Now, we had foreign students who came here without being vaccinated, without observation of strict measures and in large groups congregating on beaches or on promenades. It’s very questionable,” Mercieca added.

Stifling protest in a democracy

Last week, Moviment Graffitti activist Andre’ Callus pointed out that the legal notices being cited by the police are in direct breach of Article 42 of the Constitution, which refers to the right for freedom of assembly in such demonstrations.

While the Article does allow for exceptions that curtail the right to freedom of assembly in the name of public health, for example, such a restriction must be “reasonably justifiable in a democratic society”, a constitutional lawyer confirmed.

“While I agree that there should be reasonable restrictions to avoid the spread of COVID-19, the blanket excuse of the pandemic should not be used in an arbitrary and illegal manner that breaches fundamental human rights,” Callus said, referring to the decision as “anti-democratic”.

Besides Moviment Graffitti and ARC, Occupy Justice and Repubblika also spoke up against the government’s decision to prohibit protest.

While making it clear that the organisations had refrained from holding large demonstrations to make sure there are no avenues for COVID-19 to spread further, Repubblika expressed concern about how they had sought guidance from the health authorities but were instead redirected to the Malta Tourism Authority.

“Protests or the public expression of political opinion cannot be subjected to the oversight and regulation of the government, let alone the agency that regulates unrelated economic activities,” Repubblika told The Shift.

Occupy Justice, a pressure group focused on direct actions, said they were “appalled” by the refusal of permission from the police: “Even if we do consider the need to follow protocols, we do not exclude the fact that the whole scenario can be discouraging for activists. It’s a knife that cuts both ways: damned if you do, damned if you don’t, which is, frustratingly, very convenient for those who would rather we shut up and stayed put”.

A blanket ban applied selectively

On 30 June, the Malta Entertainment Industry Association (MEIA) planned to hold a demonstration in front of parliament. A day before the event, the MEIA was served with an objection letter from assistant commissioner Kenneth Haber who argued that the objection is based on legal notice 224, which at the time was prohibiting “all organised mass events” except for weddings and religious events.

Like other NGOs, the MEIA was also planning on ensuring all COVID-related protocols were observed, including hiring private security to ensure social distancing if necessary. Yet despite the clear commitment from the organisers to ensure the event would be held as safely as possible, the demonstration was held back due to the objection as well as ongoing negotiations with the government.

“When I was speaking to the assistant police commissioner over the phone, I was warned that if we were to go ahead as we had planned, they would have to show up and fine each person €6,000 as we had advertised a mass event,” MEIA president Keith Howard said when contacted.

Howard then explained that the police’s main issues were with the fact that they had advertised the protest and the event had already amassed 1,200 people who wished to attend as well as the fact that restrictions would have been relaxed through legal notice 273 after 5 July.

“They failed to put our demonstration in context and were treating it as if it were a normal event. So the constitution allows us to protest and yet we were told that the superintendence of public health’s legal notices override it,” Keith said.

The MEIA’s president also made it clear that the artists’ association has had enough of the government’s “constantly moving goalposts” and that it is expecting its demands to be fulfilled in terms of events being allowed.

“We’ve been very patient for the past year and a half, with the target always being moved from one vaccination target to another. Once we reach 85% immunity, as health minister Chris Fearne has told us, we expect measures to be eased in a reasonable way,” Keith stated.”This is the last time we’re accepting the goalpost being moved,” he added.

A breach of the Constitution

Asked to explain whether police restrictions were in line with the Constitution, which guarantees the right to freedom of assembly, former EU Commissioner Tonio Borg argued that “for the restriction to be declared as reasonably required, there must be a genuine, real link between the restriction and the public interest being sought”.

“In this case, especially in light of the fact that organisers were willing to respect COVID protocols as required, this restriction is not reasonably justifiable in a democratic society,” he added, referring to how other Western democracies are allowing demonstrations to occur in light of the fundamental right of protest.

“A blanket ban that does not consider the right to assemble is breaching both the Constitution of Malta as well as the European Convention on Human Rights,” the lawyer stated.