Trinidad and Tobago’s sedition laws are back in effect.
On Friday, Justices of Appeal Mark Mohammed, Charmaine Pemberton and Maria Wilson allowed the Attorney General’s appeal of a judge’s ruling that parts of the law were unconstitutional, as it infringed on the rights of citizens to freedom of expression and thought and freedom of the press.
The AG was not successful in one minor aspect of the appeal.
In his decision in January last year, Seepersad found sections 3 and 4 of the Sedition Act “patently inconsistent and at odds with Section 1 of the Constitution, which guarantees that TT is a sovereign, democratic state.
“In addition, they violate the rule of law because they lack certainty, are vague and so their status as law cannot be reasonably justified in this sovereign, democratic state,” the judge said.
Seepersad’s ruling meant people could no longer be charged with the act of sedition.
The late secretary-general of the Sanatan Dharma Maha Sabha, Sat Maharaj, and his media company, Central Broadcasting Services Ltd, filed the constitutional claim after Maharaj made certain statements on his Maha Sabha Strikes Back programme on TV Jaagriti on April 15, 2019. He said citizens living in Tobago were lazy and the men were rapists.
Maharaj was not charged, but the Telecommunications Authority (TATT) considered the statements divisive and this led to a police investigation to determine whether the statements were of a seditious nature. Police raided the CBSL’s studio,and Maharaj said he presumed he would be charged with sedition.
An originating summons was filed by his attorneys, but he died and the judge allowed his son Vjiay to replace his father as a claimant in the proceedings. The AG’s appeal of this substitution was dismissed by the Court of Appeal.
In its ruling on Friday, the Court of Appeal held sections 3 and 4 of the Sedition Act did not violate the principles of legal certainty, and met the requirements of valid law.
The judges also held that the law defined the criminal offence with sufficient clarity, and anyone charged with the offence, with appropriate legal advice, could understand what conduct was prohibited and regarded as criminal.
On the savings-law clause argument, the judges held it saved the Sedition Act, and can only be changed by Parliament.
“The court cannot do what Parliament is mandated to do by the very Constitution that we uphold. Our decisions must be grounded in our realities.
“…In any event, the challenges mounted against the act do not warrant our intervention particularly when viewed through the lens of the safeguards in place,” they said.
The safeguards they identified are: the requirement of the consent of the Director of Public Prosecutions before charges are laid; the ability to advance, at trial, a no-case submission or permanent stay of the indictment on the basis of abuse; and the ability of judges to infuse common-law evaluations to ameliorate any strictures of the statutory definitions of sedition.
In their decision, the judges acknowledged that the offence of sedition was “issue- and context-sensitive,” as: “The socio-cultural and political issues of one generation are often not those of preceding or succeeding generations.”
They said although the definition of an offence might appear to be couched in “somewhat broad terms,” that by itself did not imply invalidity by reason of lack of certainty.
“Context is everything with respect to an offence, the primary objective of which is to safeguard and maintain public order and safety. To achieve that objective in a manner consistent with evolving circumstances and standards, it is rationally discernable that the offence of sedition might necessarily have had to be framed in somewhat broad terms in order to encompass a variety of situations at different points in time,” they added.
“…In this way, the sedition laws would retain a level of flexibility to keep pace with changing circumstances and societal evolution.”
They said actions which historically might have a tendency to “deprave and corrupt” or “shock and outrage” the feelings of the general public, or sections of the public, would not necessarily have the same impact in contemporary times.
Maharaj and the CBSL’s lead attorney, Ramesh Lawrence Maharaj, SC, in his submissions in response to a question from the court, said the court only had to decide if the sedition laws met the legal requirements of a law, and whether they offended the Constitution, and not consider the context of TT’s society or “dabble in politics” to determine what could possibly happen on the social or political field.
However, the judges referred to Hansard, which they used as part of their analysis to explain the general background and purpose of the sedition law and its continued relevance. They said, “The protection of the racial harmony in TT was at the time of its enactment and remains today the telos of the Sedition Act, especially in its present form.”
They said courts, over time, have taken judicial notice of socio-cultural and racial dynamics of TT at the time of interpreting sections of the Sedition Act and judges were entitled to bring their knowledge and experience to effect meaningful justice.
“A quick reflection on the years following our independence reveals that certain issues have led to racial tensions between certain racial groups in our country,” they said, adding that using “context” as an interpretative tool would lead to the conclusions that the two sections of the act were not vague or lacking in certainty.
They referenced racial tensions before and after elections in TT, which sometimes, they said, resulted in racial slurs being hurled by one racial group at another; statements on the hustings about a “ship at Calcutta waiting to sail to Tobago;” “epithets similar to those used during the Rwandan genocide” after the 2020 general election; and Archbishop Jason Gordon’s observation that the 2020 election “was one of the most racially charged” that he could remember.
“We cannot divorce from our minds the socio-cultural dynamics of TT,” the judges said. “A racially charged comment when made to a ‘mas player’ on Carnival Monday dancing to soca music may have a different impact if made either before or after a general election.
“Context is an important tool in determining the constitutionality of a law. A sterile approach to constitutional interpretation cannot be relevant or desirable and will certainly belie the principle of flexibility in the interpretation of constitutions.”
They said the offence of sedition was one against public order and safety and had to be assessed against the particular circumstances at the relevant point in time.
In their unanimous 138-page ruling, the judges said section 1 of the Constitution was not a “fallback” section that could be used to give rights to constitutional redress when none is due, as it related to the allegation that the two sections of the Sedition Act provided fetters on freedom of speech.
They said the declaration of TT’s status as a sovereign democratic state, and the declaration of the Constitution’s supremacy, could not be used as paths to impugn an act or sections of it, even if they are found to be in violation of fundamental rights enshrined in sections 4 and 5 of the Constitution.
“Sections 1 and 2 (of the Constitution) cannot be used in this way. If there is a clear violation of sections 4 and 5 then the attack must be brought there,” they said.
As a postscript, the judges quoted from Barry C Black, US Senate chaplain, during a prayer at the closing of a joint session of the Congress after rioters stormed the Capitol in January.
“We wish to note that we are quite cognisant that some jurisdictions are engaged in the debate of how optimally to strike the balance between giving the fullest reasonable accord to freedom of expression and the countervailing need to ensure that public order and safety is duly maintained.
“While recognising the essential character of freedom of expression, a torrent of inappropriate words may lead on occasion to devastating consequences. The power in the tongue and in the pen ought not to be underestimated,” the judges said.
At the end of the hearing on Friday, as the judges invited parties to discuss the issue of costs, one of the attorneys for the State, in asking for the rule of “cost follows the event” to be applied, said the case ought not to have been pursued and could not be pursued further.
Attorney Vanessa Gopaul pointed to the one-year limitation period for laying sedition charges, adding that Jaagriti TV was not at risk of this happening.
In the end, the judges ordered each party to bear its own costs “because of the far-reaching issues” raised.
The AG was represented by Senior Cousel Fyard Hosein, Vanessa Gopaul, Sean Julien and Vincent. Jardine.
Vijay Maharaj and CBSL were represented by Senior Counsel Ramesh Lawrence Maharaj, Jagdeo Singh, Dinesh Rambally, Kiel Taklalsingh, Stefan Ramkissoon and Rhea Khan.