The right to protest is currently at the forefront of critical debates about democracy and the nature of the state. Mass protests have been seen across the European Union in response to austerity measures and the policing of protests, direct action and demonstrations in the UK was recently the subject of the comment by the UN rapporteur on Freedom of Assembly and Association. In general terms, the right to protest, to use political action to express opposition to unpopular laws, is regarded as a fundamental part of any democratic state. It is an important mechanism whereby the ongoing contestation of law can be expressed and conflicting views articulated.
This appears to be true, however, only to the extent that the subject of the protests is more or less aligned with the interests of the state — to the extent that it does not ask difficult questions. The recent wave of “flag” protests in Northern Ireland has opened up a new perspective on the right to protest and the relationship between law and the state.
Since the signing of the Belfast (“Good Friday”) Agreement in 1998, it has been common to speak of Northern Ireland as being “in transition”. The discourse of transitional justice has been applied to justify extensive political and legislative reforms to ensure human rights and equality. Significant academic and policymaker attention has been devoted to the question of reconstruction and reconciliation. Groups and statutory bodies have been established to report on how best to deal with the past, on how to appropriately address the needs of victims, and how to ensure that human rights law adequately reflects the “particular circumstances of Northern Ireland”. Law and politics in Northern Ireland have been packaged into a neat narrative of transition that focuses on promoting an image of unity in the face of a troubled past. Gone, or so we are led to believe, are the days of firebrand preachers and men of violence. In their place we have a cross-community power sharing executive. We have complex rules of procedure designed to ensure consensus on important political matters. Northern Ireland has become the model case study for societies emerging from civil conflict — exported across the world as an example of how reconstruction and reconciliation can work.
Any yet the flag protests appear to call this into question. Images of loyalist protesters clashing with police are beamed around the world. People struggle to understand the problem; after all, “it is only a flag”. The overwhelming tone of commentary on the topic has been condemnatory. Rather than celebrating protest and its democratic function, commentators are at pains to emphasise that the protesters are not representative and that their grievance is not legitimate. The protesters are characterised as reactionary, as resisting the inevitable progress towards reconciliation and equality. Any yet this current wave of protest should not be regarded as an anomaly. Street protests (often violent) are a recurring feature of political life in Northern Ireland. They emerge sporadically, but regularly, where a group feels alienated. The difference this time is that the protesters are from a traditionally pro-state constituency. They are protesting to maintain the status quo rather than to subvert it. This does not mean, however, that there is no counter-hegemonic quality to their protest. Their value lies precisely in the challenge that it lays down to the narrative of transition — to the now dominant discourse of reconstruction and reconciliation in Northern Ireland.
The narrative of transition, to be successful, must be constructed on the idea of consensus. It is presented as a normative (and as such objective) regime that provides a framework for political reconciliation. And yet the struggle for ownership of the language of transition is no less political than the violence that preceded it. Transition is the framework within which power is allocated in the new order. As Derrida suggests, the dominant power will be the one that manages to impose and thus legitimate the terminology and interpretation that suits it best.1 This strategy has been adopted with devastating effectiveness by the Republican political leadership. Those who have been unwilling or unable to adopt the language of transition remain marginalised and voiceless, far removed from political power or influence. It is against this backdrop that we see street protests emerge. The protests reveal the restrictive narrative of transition, bursting at the seams, unable to fully accommodate the challenge posed by the demonstrators. They thus represent a challenge to the very structures of transition that are struggling to contain dissensus.
Therefore, rather than seeing the protests as a negative event, as a failure of the process of reconstruction and reconciliation, they should be regarded as a productive element of such processes. While some protests have turned violent, the idea of peaceful protest itself has provided a voice for a community that feels left behind and excluded in the new order. There is increasing evidence of mobilisation of this largely disengaged community around questions of law, politics and state. A number of new and articulate young spokespersons have emerged and leaders of the main political parties have been forced to listen to their more vulnerable constituencies.
This contestation of norms simply represents what would be, in any settled democratic state, a natural part of political conflict. The urge must be resisted to condemn and stifle protest by this community on the basis that a delicate process of reconciliation must be maintained. For many years politics in Northern Ireland has been held to ransom to the idea of a “threat to the peace process”. It is now time to demonstrate the progress that has been made. The protests have not, for example, resulted in the collapse of the power sharing government. They have not led to widespread inter communal violence, and they have not led to the introduction of repressive legislation. This is progress.
Reconciliation is an ongoing and fluid process. It cannot be achieved by sticking to rigid legal frameworks and papering over political cracks. Political reconciliation requires both that armed groups learn the art of democratic politics and that the state learn to accommodate difference. The “flag” protests are simply a new chapter in the process of political reconciliation in Northern Ireland.
For more debate and discussion on the general theme of ‘reconstruction and reconciliation’, join the Critical Legal Conference in Belfast on 5-7 September 2013.
Catherine Turner is a lecturer in Durham Law School. She publishes in the field of transitional justice and is a member of the Durham Global Security Initiative and the Law and Conflict Research Group. She is also a PhD candidate at Queen’s University Belfast and a member of the organising committee for the Critical Legal Conference 2013.