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Tuesday 21 January 2020
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The sedition conundrum

Conundrum is described as “a hard or puzzling question.” So, it seems, with the 1920 Sedition Act. Noting its irrelevance today, the UNC, other political parties and numerous civic organisations clamour for its repeal.

At the Police Service Independence celebration, PM Dr Keith Rowley said not so fast, age does not matter and the law is the law. Last Thursday, however, sensing a red flag, he said his government remains open to suggestions.

Will this sedition conundrum be settled the same way the recent Freedom of Information controversy went? Or will government dig in its heels?

Meanwhile, social media language today is making a mockery of the 1920 Sedition Act. England placed it in the cemetery long ago. The central issue is the prized jewel of democracy – freedom of speech.

The Sedition Act was the basis for charging political leader (Progressive Democratic Patriots) and Public Services Association president Watson Duke and for the police search of Sat Maharaj’s TV Jaagriti files. The objective of the act is “to provide for the punishment of sedition acts and seditious libel, to facilitate the suppression of seditious publications and to provide for the temporary suspension of newspapers containing seditious matter.”

Punishment ranges from a $5,000 fine and two years' imprisonment after summary trial to $20,000 and five years after a High Court trial (as amended. Consent from the Director of Public Prosecutions is required for prosecution).

The act further states newspapers found guilty may also have their publication suspended for up to one year – in addition to or in place of other punishment.

My close encounter with the Sedition Act came around 1978 through my membership in a cabinet-appointed committee to review the long list of banned publications contained in the subsidiary legislation. Among other committee members were Dr Selwyn Ryan and UWI librarian Barbara Commissiong. John Donaldson was minister of national security.

Following the noisy opposition against government’s recent move to amend the Freedom of Information Act, it now faces similar accusations of “oppression and dictatorship.”

“On the road to dictatorship,” declared letter-writer Linus Didier last week. For such reasons, it would be interesting for a person accused under this act to opt for a jury trial (Section 4(3)). The jury verdict may reveal what the people think. And the government may take it from there.

Sedition issues, as with some other issues like apparent bias, sentencing and sexual harassment, require adjudication beyond narrow legalisms. That is why I had proposed to Ramesh Maharaj when he was attorney general to broaden the composition of the lawyer-packed Law Reform Commission.

Last November, the vocal and eccentric Duke, referring to an industrial dispute with WASA, declared among other things: “We have to be aware that we must be prepared to die, folks. When talking conviction, I does get emotional, because me ain’t in no marching, marching thing…That can’t change nobody mind…I looking for a bomb, something to end the fight.”

Not one to resist colourful language, he is now on $250,000 bail.

Dr Rowley asked: “Is it the act itself (that) is the problem or is it a right for a citizen, head of one sector of the country, to make disparaging, hurtful and damaging statements to another sector and say, 'It is my right and if I lose my job, the end result will be X, Y or Z'?”

The Sedition Act states that “a seditious intention is to bring into hatred or contempt, or to excite disaffection against government, or the Constitution, the House of Representatives or the Senate or the administration of justice” (Section 3(1).

But every day the electronic and print media carry “disaffection against government,” justifying it under need for checks, balances and accountability. This is not treason.

Further, it raises a debatable issue: if by words opposition forces cannot express “disaffection with government,” how then will the government be legally changed? How did the PNM move out the UNC and vice versa?

Current experiences around the world show that governments, constitutionally democratic, and apart from corruption and incompetence, arrogantly construct self-preserving measures that ignore the needs and wishes of their respective populations. Freedom of expression becomes the population’s last resort, meaning that the obligations of good government must also be fulfilled.

The 1920 act itself suffers from ambiguity and subjectivity. What does “disaffection” mean today?

The act allows citizens or groups to point out by lawful means “errors or defects in the government” with a view for reforms. Now, “lawful means” have changed a lot from 1920 to now. Secondly, how can pointing out “errors or defects” be done without inferring “disaffection”?

In any case, it will be a jurisprudential challenge for the Sedition Act to be reconciled with the rights and freedoms enshrined in the Constitution – freedom of the press, of speech, association, etc (Section 4).

While information may be the oxygen of democracy, if freedom of speech is unduly restricted, both information and democracy get stifled.

But this romance with democracy cannot stop here. While the debate continues, it must be noted that social media language today often sits on the opposite side, not only making a mockery of the Sedition Act, but enjoying a licentiousness that threatens civil society as well: a threat, often promoting racial hatred, that is now seriously treated around the world.

Both extremes need taming, reasonably.

The Sedition Act states a “seditious intention” arises from engendering or promoting “feelings of ill-will towards, hostility or contempt for any class of inhabitants distinguished by race, colour, religion, profession, calling or employment: or to advocate with intent to destroy any identifiable group by killing members of the group or inflicting conditions for its physical destruction (Section 3.1).

So Ms Kamla Persad-Bissessar asked why PNM MP Fitzgerald Hinds was not investigated like Duke when he said: “The UNC is badly wounded. We need to finish them off. Kill them dead. On November 28, you have the opportunity to drive a PNM balisier deep into the hearts of the wicked UNC vampires. Take a stake with a balisier on top and drive it deep within their heart and finish them off once and for all.” Hinds called this metaphorical.

Duke’s arrest triggered national debate involving lawyers, the Media Association, trade unions, politicians, government and opposition groups and ordinary citizens. The apparent faux pas by police with the warrant for Sat Maharaj aggravated public opinion. The Opposition Leader said: “It is the greatest irony that on our 57th Independence anniversary our own government is doing the same thing as our colonial oppressors.” Like Movement for Social Justice leader David Abdulah, UNC MP Dr Roodal Moonilal alleged that Commissioner Gary Griffith acted under “government’s instructions.”

Dr Rowley replied that it was not so at all.

Griffith said: “It is the job of the Police Service to be fair and impartial….All citizens are free to lobby their MPs for Parliament to make changes to any existing law.”

The public lobby has already started.

Dr Rowley said his government is now open for suggestions. In fact, government may well take action now to make the act no conundrum at all.

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