Keeping the Peace

The Perfect Protest Recipe: Multiple arrests outside the ASB Classic Tournament, where Israeli tennis professional, Shahar Peer, was playing, guaranteed maximum publicity for the Palestinian cause. But surely, when a protest's entire political effectiveness turns on breaching the Queen’s Peace, one can hardly complain when her officers move in to restore it?

THE ARREST in early January of eight citizens protesting against the participation of Shahar Peer, an Israeli tennis professional, in the ASB Classic Tournament raises some interesting questions about both the legal and moral obligations of protesters and police.

Video clips taken at the scene confirm that the arrests were made under Section 42 of the Crimes Act – which mandates both ordinary citizens and police officers to restrain anyone in the commission of – or about to commit – a "breach of the peace". (The eight arrested were later charged with disorderly behaviour and obstruction.)

Putting to one side these eight cases, now sub judice, the legal interface between a citizen’s right to engage in political protest and his or her duty to "keep the peace" warrants closer scrutiny.

Historically, a breach of the peace "can arise from virtually any conduct which caused or (can generally be regarded as likely to cause) either alarm, annoyance, upset or embarrassment to another person or persons." Rather alarmingly, the British legal commentator, L.J.G. Emslie observes that: "There is no limit to the kind of conduct which may give rise to a charge of breach of the peace."

This almost unlimited discretion is explained by the fact that the charge is neither a criminal nor a civil offence but a "legal oddity created by the Royal Prerogative". It’s a concept whose origins go all the way back to the reigns of King Henry II and King Edward I – both of whom assumed power following a civil war.

The "King’s Peace" stood in vivid contrast to the violence, disorder and general lawlessness prevailing in those parts of 12th Century England where the royal writ did not run. Where ordinary people could be assaulted, abducted, raped, robbed, enslaved and even murdered without hope of rescue or redress, there was, understandably, a strong desire for someone – anyone – to impose order.

Unfortunately, the "order" imposed was all-too-often that of the local feudal lord. (A bit like having Tony Soprano as your local police chief!) What made the "King’s Peace" so important was that, theoretically, it applied to all his subjects – the high and mighty, as well as the poor and lowly.

The King’s Peace was thus akin to a peace treaty ending a war. The former belligerents all agreed to end hostilities, and their rights and duties in the new order were clearly spelled out. Most importantly, having agreed to the "treaty" and accepted its protocols, every subject was expected to honour it.

To make certain that hostilities were not recommenced in his absence, the King appointed "Knights of the Peace" – later renamed "Justices of the Peace". From the perspective of these peace-keepers (the medieval equivalent of our modern day police force) any group of subjects attempting unilaterally to infringe the rights of another group of subjects was guilty of breaking the "treaty" – or, "breaching the peace".

As agents of the Crown, the King’s peace-keepers were institutionally predisposed to regard any form of political activity as a direct challenge to the Royal Prerogative. Modern police forces tend to react in exactly the same way – regarding all but the most inoffensive manifestations of political behaviour as breaches of the social contract which allows citizens to go about their lawful business without let or hindrance.

This explains why the Police react so forcefully to protests, such as the series of demonstrations outside the ASB Tennis Centre, which are intended to impede the lawful pursuits of other New Zealanders (in this case by diminishing their enjoyment of an international tennis tournament). In the eyes of the Police, such demonstrations are inimical to everything the "Queen’s Peace" is intended to preserve.

Few aspects of human behaviour are as likely to arouse powerful emotions as politics, which is why the Police must be especially careful to prevent situations developing where people become angry enough to initiate violence against their political opponents. The incident in 1981, when protesters effectively halted the rugby match between the Springboks and Waikato, offers a sobering example. In the hours following the game’s cancellation ugly scenes of violence erupted all over Hamilton.

Nor is this a purely ethical consideration. Since one of the fundamental duties of the Crown is to preserve the peace, any failure to do so renders it not only morally but legally liable for any and all damages arising from its breach. It is this consideration which explains the powerful historical association between "breach of the peace" actions and instances of "riot and affray".

So, where does this leave those citizens who feel so strongly about an issue that they are willing to abrogate the "social contract" which allows us all to get along with one another without resorting to violence and/or intimidation? The classic answer is very clear. Those who engage in "civil disobedience" by intentionally breaking the law and/or negating the rights of their fellow citizens must be willing to bear the consequences.

In the case of the Shahar Peer protests, the demonstrators were deliberately interfering with both the player’s and the spectators’ right to participate in and enjoy a tennis tournament. Their purpose in doing so was to draw public attention to the manifest injustices suffered by the Palestinian people at the hands of the Israeli State. The moral right of an oppressed people to be given justice, they argued, superseded the legal right of New Zealanders to enjoy a tennis match without interruption.

But the Police, if they are to be fair to all those New Zealanders who have (metaphorically) signed the "treaty" requiring the universal and unequivocal observance of Statute Law, cannot accept this. No group (however loftily motivated) can be permitted to arbitrarily limit the rights of their fellow citizens with impunity. If they were, what reason would other groups have for keeping the peace?

The only way disruptive protesters can escape the charge of having "double standards" is by willingly accepting the consequences of their actions. The anti-Peer protesters rejected the option of using exclusively visual means to make their point, insisting that their protest had to be loud enough to put the case for the young Israeli’s non-participation before the spectators.

But surely, if the entire political effectiveness of your protest turns on successfully breaching the Queen’s Peace, then it ill-behooves you to complain when her officers move in to restore it?

This essay was originally published in The Independent of Thursday, 21 January 2010.