The cases of several citizens charged with sedition may have to be discontinued if the Office of the Attorney General is not successful in its appeal of Justice Frank Seepersad's landmark judgement over the constitutionality of this country's colonial-age sedition legislation.
Moments after Seepersad struck down segments of the legislation at the Hall of Justice in Port-of-Spain, yesterday morning, lawyers representing the AG's Office sought to have him suspend his orders pending their appeal, due to the effect of them on a handful of pending cases including ones involving Jamaat-al-Muslimeen leader Yasin Abu Bakr and Public Services Association (PSA) President Watson Duke.
Bakr was charged with sedition over his Eid-ul-Fitr speech at his organisation's mosque in St James in 2005. Bakr's hour-long sermon centred around the Islamic principle of zakaat, which requires Muslims to donate a two and a half per cent of their wealth to charity.
Bakr went on trial in 2012 but the case ended in a hung jury and he was ordered to be retried.
Last year, Duke was charged with sedition over statements he made during a protest at TSTT in 2018.
Seepersad's judgement has no effect on persons who may have been convicted of the offence prior to the judgement, only those awaiting trial.
The move to suspend his orders was strongly opposed by lawyers representing Vijay Maharaj, the son of former Sanatan Dharma Maha Sabha (SDMS) secretary-general Satnarayan Maharaj, who brought the novel constitutional challenge before his death on November 16, last year.
The application was eventually rejected by Seepersad, who did not think it was appropriate in the circumstances.
In a brief interview after the judgement was delivered, Senior Counsel Ramesh Lawrence Maharaj, who led Maharaj's legal team, stated that his team would challenge the AG's Office if it attempted to seek to make a fresh application to suspend Seepersad's orders.
"What should happen now is both the AG and the Office of the Director of Public Prosecutions (DPP) should ensure that all prosecutions, which were instituted under this act, be stayed to abide by the decision of the Court of Appeal or Privy Council," Maharaj said.
In his 51-page judgement, Seepersad ruled that sections 3 and 4 of the legislation, which prescribes the offence of sedition, are unconstitutional and breaches the rule of law.
"This Court has found that the vagueness, lack of clarity and uncertainty in the relevant provisions of the Sedition Act leads to an arbitrary application of the law," Seepersad said.
Seepersad also ruled that Constitution's saving clause, which precludes it and other colonial-age legislation from judicial interpretation, did not apply.
"Given the evident lack of clarity and having found that they do not meet the standard to qualify as a law, they cannot be treated as "existing law" so as to be saved by Section 6 of the Constitution," Seepersad said.
He also ruled that the legislation is not compatible with the tenants of a sovereign democratic state as it limits constitutional rights to freedom of thought and expression and freedom of the press.
"Given the history of T&T from the period when there was a Monarchy to the post-1976 era when T&T became a Republic, the impugned provisions now have no place in this sovereign democratic state where the people are sovereign," Seepersad said.
Maharaj filed the lawsuit after police executed search warrants on the SDMS's media house Central Broadcasting Services after Maharaj made a series of incendiary statements on his Maha Sabha Strikes Back programme on TV Jaagriti on April 15.
Maharaj claimed that citizens living in Tobago are lazy and labelled the men as rapists.
While no criminal charges were eventually brought against him and he suggested that such was inevitable while addressing supporters during SDMS Indian Arrival Day celebrations.
In his judgement, Seepersad expressed disapproval over Maharaj's offensive statements, describing them as "divisive, inappropriate and unsuitable in a plural society".
"There is, however, an evident when dealing with situations such as the one which arose when the deceased Maharaj uttered his statements, for citizens to understand the individual power which each person has, to reject unacceptable or divisive programmes and policy," Seepersad said, as he suggested that listeners and viewers can choose not to tune into offensive programmes.
"On a corporate level, advertising funding can be withheld, as market forces can effectively regulate improper and inappropriate conduct," Seepersad said.
Referring to submissions from the AG's Office on the role of the legislation in minimising social hostility and unrest, Seepersad said that there is other legislation that covers inciting violence.
"Other laws, however, such as legislation which governs hate speech can be utilised to ensure that there is a balance between the maintenance of good social order and the preservation of national security on the one hand and the rights of free speech and responsibility as well as the ability of individuals to criticise the State and each other, on the other," he said.
As a secondary issue in the lawsuit, Seepersad was asked to approve an application to have Maharaj's son Vijay substituted as the claimant in the lawsuit after his death. The application was made before the case went to trial, last December, but the parties agreed that it should be dealt with together with the substantive case.
In approving the application, Seepersad ruled that the seriousness of the alleged breaches of Maharaj's rights should not be "devalued by his death".
Seepersad also ruled that the Central Broadcasting Services was also a legitimate party to the claim as the legislation potentially related directly to its operations.
As part of his judgement, Seepersad also ordered the State to pay Maharaj's legal costs for bringing the lawsuit.
Maharaj was also represented by Jagdeo Singh, Dinesh Rambally, Kiel Taklalsingh, Stefan Ramkissoon and Rhea Khan. The AG's Office was represented by Fyard Hosein, SC, Josephina Baptiste-Mohammed, Vanessa Gopaul, and Sean Julien.
What the legislation says:
3. (1) A seditious intention is an intention— (a) to bring into hatred or contempt, or to excite disaffection against Government or the Constitution as by law established or the House of Representatives or the Senate or the administration of justice; (b) to excite any person to attempt, otherwise than by lawful means, to procure the alteration of any matter in the State by law established; (c) to raise discontent or disaffection amongst inhabitants of Trinidad and Tobago; (d) to engender or promote—(i) feelings of ill-will or hostility between one or more sections of the community on the one hand and any other section or sections of the community on the other hand; or(ii) feelings of ill-will towards, hostility to or contempt for any class of inhabitants of Trinidad and Tobago distinguished by race,colour, religion, profession, calling or employment; or(e) to advocate or promote, with intent to destroy in whole or in part any identifiable group, the commission of any of the following acts, namely:(i) killing members of the group; or(ii) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.
(2) But an act, speech, statement or publication is not seditious by reason only that it intends to show that the Government has been misled or mistaken in its measures, or to point out errors or defects in the Government or Constitution as by law established, with a view to their reformation, or to excite persons to attempt by lawful means the alteration of any matter in the State by law established, or to point out, with a view to their removal by lawful means, matters which are producing, or have a tendency to produce— (a) feelings of ill-will, hostility or contempt between different sections of the community; or (b) feelings of ill-will, hostility or contempt between different classes of the inhabitants of Trinidad and Tobago distinguished by race, colour, religion,profession, calling or employment.
(3) In determining whether the intention with which any act was done, any words were spoken or communicated, or any document was published, was or was not seditious, every person shall be deemed to intend the consequences which would naturally follow from his conduct at the time and under the circumstances in which he so conducted himself.
4. (1) A person is guilty of an offence who— (a) does or attempts to do, or makes any preparation to do, or conspires with any person to do, any act with a seditious intention; (b) communicates any statement having a seditious intention; (c) publishes, sells, offers for sale or distributes any seditious publication; (d) with a view to its being published prints, writes,composes, makes, reproduces, imports or has in his possession, custody, power or control any seditious publication.
(2) Subject to subsection (3), a person guilty of an offence under this section is liable— (a) on summary conviction to a fine of three thousand dollars and to imprisonment for two years; or(b) on conviction on indictment to a fine of twenty thousand dollars and to imprisonment for five years, and any seditious publication, the subject matter of the charge, shall be forfeited.
(3) Notwithstanding any other written law to the contrary where a person is charged summarily with an offence under this section the Magistrate shall— (a) inform him that he may, if he so requires, be tried indictably by a jury instead of being tried summarily and explain to him what is meant by being tried summarily; and (b) after so informing him ask him whether he wishes to be tried indictably by a jury or consents to be tried summarily,and if the person charged requests to be tried indictably, the Magistrate shall proceed with the matter as if it was a preliminary enquiry.
(4) A person shall not be convicted under this section for communicating, importing or having a seditious publication or statement in his possession, power, or control, if he proves that he did not know and had no reason to suspect that the publication or statement was seditious.
Maharaj's family responds:
Relatives of former former Sanatan Dharma Maha Sabha (SDMS) secretary-general Satnarayan Maharaj have vowed to keep his tradition of challenging controversial laws and policies alive.
Maharaj's son Vijay made the statement in a brief interview at the Hall of Justice in Port-of-Spain, shortly after High Court Judge Frank Seepersad upheld his father's last landmark legal challenge.
"This was a case that was taken up, not for personal interest, but by an interest in protecting the freedom of T&T. Maharaj always fought for the community and not himself," Maharaj said.
He noted that he and other relatives had no intention of letting the lawsuit lapse after his father passed away weeks before it was set to go on trial.
In his interview, Senior Counsel Ramesh Lawrence Maharaj, who led Maharaj's legal team, also paid tribute to his deceased client.
"Mr Sat Maharaj is dead and gone but he should be congratulated for taking action because today he would leave a legacy for all of T&T and for the Commonwealth," Maharaj said, as he noted that Indian hero Mahatma Ghandi had been charged with similar sedition offences while challenging British colonial control of India.
Maharaj stated that his legal team was ready to take the case all the way to the Privy Council.
"We are prepared to fight this battle to the end to defend the right of freedom of speech and to defend democracy. What this case also highlights is the importance of the Judiciary as the guardian of the rights of the people," Maharaj said.