Privy Council upholds sedition law in Maha Sabha challenge

TRINIDAD and Tobago’s colonial-age sedition law stands, the Privy Council has ruled.

The country's highest court on Thursday dismissed the Sanatan Dharma Maha Sabha challenge to the constitutionality of the pre-independence legislation.

Lords Lloyd-Jones, Sales, Stephens, Richards and Sir Rabinder Singh delivered their ruling in the final appeal in the case, first filed in 2019 by the late Satnarayan “Sat” Maharaj – secretary general of the SDMS – after police executed search warrants on the group’s radio and TV stations, taking away, in the process, recordings of the April 15, 2019, television programme Maha Sabha Strikes Back.

Maharaj, 88, who died in November 2019, described Tobagonians on his programme as lazy people, more interested in racing crabs and goats and targeting white women to rob and rape them. No criminal charges were laid against him.

He challenged the lawfulness and constitutionality of certain provisions of the Sedition Act, particularly sections 3, 4 and 13, which he said were vague, uncertain and therefore illegal.

Section 3 sets out what is considered a seditious act, while section 4 details the particulars of the offences and section 13 deals with search warrants.

Maharaj and Central Broadcasting Services Ltd, the parent company of the SDMS’s radio and television station, claimed the law violated the principle of freedom of expression, which is a central tenet of a democratic state.

After his death, the case was taken over by his son, Vijay, who took it to the Privy Council when, in March 2021, the Court of Appeal overturned the earlier ruling of Justice Frank Seepersad, who held that two sections of the act were unconstitutional and infringed on several rights of the citizens, including the right to enjoy freedom of thought and expression, to join political parties and express political views, as well as the freedom of the press.

He also agreed that the sections complained about were vague, lacked clarity, and led to an arbitrary application of the law.

It was also argued that the law was so “overboard” that it was capable of catching legitimate and robust criticisms of the government and was not restricted to speech that incited violence or disorder, which made it incompatible with modern concepts of a democratic society.

In 2020, Seepersad said sections 3 and 4 were patently inconsistent and were at odds with section 1 of the Constitution, which guarantees that TT is a sovereign, democratic state, as these provisions impose disproportionate and unjustified restrictions on free speech, expression and thought.

In 2021, Justices of Appeal Mark Mohammed, Charmaine Pemberton and Maria Wilson ruled that the legislation was exempted from judicial intervention, as it was legitimately protected by the constitutional saving clause, which protects similar pre-independence legislation from review.

The judges also disagreed with Seepersad’s ruling that segments of the Sedition Act were too vague and uncertain to be considered a valid law.

“Some aspects of the offence of sedition, by their very nature (unlike many other criminal offences of which three examples are murder, rape, and robbery), are not capable of a precise definition. They are therefore best described by a general reference to the nature of the activities as opposed to the methods by which they can be committed since they can occur in many varied circumstances,” the appeal panel said.

The panel suggested that the generalisation in wording helped to ensure a level of flexibility for changing circumstances and societal evolution.

Sir Rabinder, who wrote the Judicial Committee’s decision, said the sedition law was part of TT’s laws before the 1962 Constitution commenced, and was saved by section 6. The ruling said to find otherwise would create legal uncertainty and open up challenges to many existing laws.

He also did not accept that the Sedition Act was unconstitutional or incompatible with section 1.

While acknowledging the importance of freedom of expression, in particular on political matters, in a democratic society, the ruling said, that section 1 concerned the structural features of the way the state should be governed.

“Those structural features must be those of a sovereign and democratic state.”

“In this appeal, the Board is concerned in particular with the second of those features, the concept of a democratic state.

“The primary structural feature of a democratic state is that the people shall be able to choose their representatives and, at least indirectly, their government.

“Another structural feature of a democratic society is the principle of the separation of powers, in particular, that the judiciary shall perform judicial functions and not the executive.”

The judgment said while there may be an overlap between the principle of separation of powers and specific rights, its extent should be kept within proper bounds, “otherwise, there is a danger that the carefully calibrated structure of the Constitution will be undermined.”

It added, “If the savings clause in section 6 could too easily be circumvented by resort to section 1, that itself would be inconsistent with the democratic principles on which the Constitution is based.

“This is because it would remove a certain subject matter from the province of the elected legislature and place it within the province of the unelected courts.

“In the Board’s view, one of the functions of section 6 of the Constitution is to give Parliament the power to determine which pre-independence laws should be retained and which should not.”

The judgment also noted, “There is no need to find a right to freedom of expression which is implicit in the democratic nature of the state in section 1 of the Constitution of Trinidad and Tobago, since there is an express right to it, to be found in section 4.”

Earlier in their ruling, they Maharaj was viewed by some as a controversial figure who often used his talk show to criticise the Government and to express strong, and at times provocative, statements on matters of public interest.

Thursday’s ruling provided an overview of the development of the law of sedition, including TT's, and gave weight to the guidance of the Appeal Court to judges in sedition cases, as they are "closer to local conditions."

“It is therefore far from obvious to the Board that, if the compatibility of the Sedition Act had to be assessed by reference to the facts of a particular case, it would be given the wide interpretation which the appellants contend it must have.

“To the contrary, the Board is of the opinion that was such a case to arise, there would be much to be said for the proposition that, applying the principle of legality, and quite apart from any constitutional considerations, the true interpretation of the Act is such that there is implied into it a requirement that there must be an intention to incite violence or disorder.”

After Seepersad delivered his decision, the Office of the Attorney General successfully applied for a stay of the judgment to protect two pending matters being prosecuted by the Office of the DPP, one of which was the sedition charge against Jamaat-al-Muslimeen leader Yasin Abu Bakr. Bakr died in October 2021.

While the decision on the suspension was still pending, Public Services Association (PSA) president Watson Duke successfully applied to Chief Magistrate Maria Busby-Earle-Caddle to be discharged of the sedition charge against him.

Maharaj and CBSL were represented by Peter Knox, KC, Ramesh Lawrence Maharaj, SC, Robert Strang, and Kiel Taklalsingh. The State was represented by Fyard Hosein, SC, Rishi Dass, SC, and Vanessa Gopaul.