Now that a Joint Select Committee will be appointed to examine the “executive decisions” that led to police pepper spraying protesters on December 2nd last year, Progressive Labour Party (PLP) backbencher Michael Scott said he was “concerned and interested” from a “legal perspective” to see whether a “credible Inquiry would reveal or unearth those responsible for the decisions taken that day”.
Ultimately, he said the end result saw “the deployments of the Riot Police marching onto Parliament Street in numbers that were ill fated to fall against the number of protesters, a finding now made by the police”.
And he questioned “the rogue action of a policeman inside of the gates of Parliament pepper spraying randomly and without justification in the protesters injuring many citizens”.
“We know that the decision makers would necessarily have been members of the executive, who interfaced with Government House and the then Speaker of the House this based on telephone records obtained under PATI request,” he said.
He was responding to the recent passage of the motion put forward by fellow PLP backbencher Kim Swan, on the eve of the first anniversary of “a solemn date in Bermuda’s history”, which Mr Swan noted “is the anniversary of another unfortunate date in the annals of Bermuda on December 2nd, in 1977”, an incident that “has caused much psychological trauma for those directly impacted and the knock on effect far reaching across the spectrum in Bermuda”.
The motion, which was passed, calls for the establishment of a Parliamentary Committee “to look into the events generally, including the decision-making and any directives of the Executive and the then Speaker of the House (Randolph Horton) given to the police, that led up to an precipitated the events on that day, including the deployment of the police in riot gear and the use of incapacitant pepper spray on the crowd of citizens assembled”.
It specifically calls for a Joint Select Committee (JSC) to thoroughly investigate “to bring closure to this event by the making of all proper and necessary findings, recommendations and where required; and to submit its report to the House of Assembly within three to six months”.
From a legal perspective, Mr Scott recommended that the wording of the motion be changed to reflect that the JSC only recommend sanctions “because this House need not and should not be making sanctions where appropriate”.
“The sanctions are for the courts, if indeed the findings warrant sanctions. Civil, criminal sanctions are the possible sanction that will flow in consequence of potential wrongful assault findings,” he said.
“It is important to note that a dozen persons/citizens were charged with offences under the criminal code relating to preventing Ministers from carrying out their duties in Parliament. The Criminal Code 1907 predates UN Treaty obligations recognizing the right to assemble and protest right now enshrined as of 1968 in the Bermuda Constitution.
“These legal realities will have a direct bearing on the question of the free exercise of people’s constitutional and treaty rights and all efforts to argue that the protest that day were unlawful,” he added.
And that “comprehensive review” of what transpired must also examine the role played by then acting Governor Ginny Ferson.
During his brief on Friday, Mr Swan said: “For the record, it is noteworthy that Mr John Rankin, had not yet been sworn in as Governor during the December 2nd incident when a Police Riot Squad Unit were deployed and the demonstrators were pepper sprayed in the discourse of duty.
“Governor Rankin subsequently ordered a review of policing that took place on December 2nd”. But before the Governor made his initial public statement there was no reference made to the Acting Governor, or her involvement during and leading up to December 2, 2016.
“History already records Ms Ginny Ferson as Acting Governor of Bermuda… In the immediate aftermath of December 2nd, it needs to be determined if Acting Governor Ferson outrightly implied wrongdoing of the protesters.”
In one of his first acts, he said the new Governor, whose Deputy “acted as Governor on December 2nd, was silent on the role of the Commander in Chief in the lead up to and during December 2nd, 2016”.
“We owe it to our people to get to the bottom of the mindset and policy that contributed to December 2, 2016. We must examine the context, political climate and mindset of those in leadership of law enforcement in Bermuda and also consider that of the age of the protesters and their intent on that day.
“As we examine the mindset that determined a policy to deploy riot police on a crowd of peaceful protesters, we direct attention to the composition of Bermuda’s leading law enforcement policymakers of that period.”
The list of policymakers referred to included: Acting Governor Ginny Ferson, then Premier Michael Dunkley, Police Commissioner Michael DeSilva, then Public Safety Minister Jeff Baron, and former Attorney General Trevor Moniz.
In direct contrast, he said the protesters were mostly Black Bermudians, many elderly with numerous women.
“It is painfully obvious that, in a country where the voting populace is 70 percent Black, the racial composition of the top law enforcers (namely the Acting Governor, Premier, Police Commissioner, Minister of Public Safety & Attorney General) in Bermuda on that fateful day were 100 percent white and lacked any racial diversity,” said Mr Swan.
“Sadly, Bermuda has a long history of racial problems where institutional racism has been continuously identified by prominent acclaimed professors, over several decades, as a systemic problem,” said Mr Swan.
“Many Bermudians viewed the onslaught of Police as an unnecessary offensive but are further saddened by the absence of a comprehensive review of what transpired.”
One Bermuda Alliance MP Trevor Moniz “congratulated the idea” of the motion and said: “We agree on this side of the House that there should be further investigation.”
But he said: “I don’t think there’s anyone in Bermuda that doesn’t think that the happenings of that day were very unfortunate and were very negative for this community as a whole.” He also said that apart from issuing a statement on the law about a month after the incident, he had “no further involvement”.
Mr Scott, who spoke directly after Mr Moniz, said”The chronology of what transpired on the day in question was clear.
“When the police arrived wearing helmets and looking menacing all against a people exercising their democratic right to stop the debate on this Airport Bill,” he said.
Referring directly to then Premier Michael Dunkley and Mr Moniz he said: “The Government took a bullheaded approach and these were decisions that were legally bad.
“They may be found to be wrong and unlawful decisions but whatever we can find, unlike what the Royal Gazette’s headline said was ‘a day to forget’, but a day never to forget and never repeat, which is why we need an investigation… These were executive decisions from then Premier Dunkley and then Speaker of the House Randy Horton”, and the steps as passed on to the police, the orders deployed must be investigated.
“People were hurt, people beyond the age of 65, the people had their sentimentality of the Government sorely tested that day and the police action was overwhelming, ill advised, by police who were not trained.” The end result he said was “a complete and utter failure”.
“The motion seeks to examine the decision making that led the police to take this action and precipitated citizens being pepper sprayed. Once done, the good work will start.
“I will share what I saw and what I did to give an account to get a clear cause and effect and absolved from blame thereof, to bring closure to the event and we know that it will lead to recommendations or recommended sanctions which are for the courts.
Ultimately, if the blame is placed at “the feet of the police”, as a start, he said that may lead to charges for assault. Failure to bring closure to the executive decisions made on the day in question, he said the “constitutional right to protest will be put in the balance”.
It all depends on how it’s resolved and in whose favour, as we struggle to understand who in the OBA government made the call on what the police attempted to do an failed.
The main question that remains unanswered is who took it upon themselves to make the decision that harmed people to be called into account for their actions. “And so we will vote to have a Joint Select Committee established to get with it for a better understanding of what took place and why,” said Mr Scott. “And there is nothing more urgent.”