Dr Emir Crowne

FIRST FOR THE REGION: Dr Emir Crowne

On Monday Justice Frank Seepersad declared sections 3 and 4 of the Sedition Act null and void (Vijay Maharaj and Central Broadcasting Services Ltd v. Attorney General, CV2019-02271 (the “Sat Maharaj” decision)). The AG has since indicated that the State will appeal the decision. I will offer an in-depth review of the decision, along with some nagging conceptual and policy issues that arise.

The law

The Sedition Act

Sub-section 4(1) of the Sedition Act (the “Act”) states that:

“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.”

In turn, sub-section 3(1) of the Act defines a “seditious intention” as an intention to:

“(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.”

The Constitution

The 1976 Constitution of Trinidad and Tobago entrenches certain fundamental human rights and freedoms. Among those rights and freedoms it was alleged that the impugned provisions of the Act infringed the following:

i. section 4(a)—the right of the individual to enjoyment of property and the right not to be deprived thereof except by due process of law;

ii. section 4(i)—the right of the individual to enjoy freedom of thought and expression;

iii. section 4(k)—the right to freedom of the press;

iv. section 4(e)—the right to join political parties and express political views;

v. section 4(j)—the right of freedom of association and assembly; and

vi. section 5(2)(h)—the right not to be deprived of the right to such procedural provisions as are necessary for the purpose of giving effect and protection of the aforesaid rights and freedoms. (Sat Maharaj, para. 2)

A nagging issue with our Constitution, however, is the so-called savings clause found in section 6. This clause immunises colonial-era laws from meaningful constitutional scrutiny (or, at least, so we thought before Justice Seepersad’s ruling). Sub-section 6(1) of the Constitution states that:

“Nothing in sections 4 and 5 shall invalidate—

(a) an existing law;

(b) an enactment that repeals and re-enacts an existing law without alteration; or

(c) an enactment that alters an existing law but does not derogate from any fundamental right guaranteed by this Chapter in a manner in which or to an extent to which the existing law did not previously derogate from that right.”

The Ruling

Justice Seepersad’s ruling can be divided into two complementary but distinct sets of reasons. First, he held that the impugned provisions of the Act lacked legal certainty and therefore could not be a “law” at all, let alone one immunised from constitutional scrutiny per section 6. Second, he held that the provisions were inconsistent with the characteristics, features and tenets of a “sovereign democratic State” and therefore unconstitutional.

Corporations and

the Constitution

As a preliminary point, however, Justice Seepersad needed to address whether the media house in question was a proper claimant. Put another way, the fundamental human rights and freedoms set out in the Constitution are often seen as personal rights (i.e. rights belonging to individuals), can corporations also claim the benefit of these rights? Justice Seepersad answered the question with an affirmative “yes’’.

Media houses in particular would be bereft of a remedy if they could not bring constitutional claims as a corporate entity. As Justice Seepersad put it:

“The Second Claimant is a media house and the right of freedom of expression is fundamental to its operations and to the preservation of democracy in Trinidad and Tobago. In fact, all citizens must enjoy, subject to lawful limitations, the freedom to candidly express opinions and political views.

As a member of the media fraternity, the Second Claimant is entitled to know the parameters within which it is allowed to act when exercising its right to express opinions.” (ibid., paras. 28 and 30)

Indeed, Justice Seepersad is correct. There is nothing in the language of section 4 of the Constitution that would limit it to natural persons only. In fact, section 4 of the Constitution is purposefully structured as to give “individual rights’’ and “freedoms’’. For instance, some of the rights speak of the “right of the individual” to certain protections. These are undoubtedly personal rights and cannot be meaningfully held by corporations or other legal persons.

However, other rights are expressed as “freedoms’’. There is no suggestion or limitation that such freedoms be held by individuals only. Quite the opposite. Most of the freedoms set out in Constitution— namely, freedom of expression, association, assembly and press —would apply to media houses, institutions of worship, mas camps, trade unions, NGOs and other legal persons just as readily as they would apply to individuals.

The First Set of Reasons

With respect to the first set of reasons (as I have labelled them), Justice Seepersad held that the impugned provisions were “hopelessly vague’’. They were so broad that their enforceability was suspect and prone to abuse. As he put it:

“The language used is obviously bad and bitterly broad. Section 3 effectively confers a discretion dangerously wide in scope in relation to the nature of the conduct which can amount to a seditious offence. This discretion is so wide and sweeping that the interpretation afforded may primarily depend upon the motives, malice, inherent bias, personal and/or political agenda of those who are empowered to engage in the interpretation exercise and apply the law. The likelihood of arbitrary or discriminatory enforcement is as real as it is repulsive.

In a democracy, laws which are not clear can lead to the evisceration of the fundamental rights of citizens. Laws must facilitate predictability and avoid arbitrariness. If they do not, their existence cannot be reasonably justified in a democratic society which prioritises the Rule of Law. Hopelessly vague legislation should therefore be struck down.” (ibid., paras 93 and 95)

In particular, the definition of “seditious intention” under the Act was impermissibly broad. Other jurisdictions required the inciting of violence against the State, whereas our Act included feelings of ill-will and hostility. Under the right circumstances, practically any form of communication or expression that was critical of the State could be swept up within its provisions, including literature, journalism and even the arts.

As Justice Seepersad noted:

“Under Section 4(1)(c), a person need only to publish a statement that expresses a seditious intention. Accordingly, a newspaper, for example, could be found guilty of sedition even if it only reported a “seditious” statement made by someone else.

There is no express requirement in section 4(1)(c) that the publisher of the statement knowingly or recklessly intended to incite others to commit an unlawful act. However, there is a common law presumption that mens rea is an ingredient of every criminal offence, so it must be presumed that, to be found guilty, there is evidence to establish beyond reasonable doubt that the publisher was aware of the nature of the material. It is therefore unsatisfactory that on its face, Section 4(1)(c) seems not to require such knowledge given that the focus is upon material which expresses a seditious intention.” (ibid., paras 104 and 105)

Against this backdrop the impugned provisions lacked the legal certainty to qualify as a “law” to begin with. There was therefore no need for the Court to inquire as to whether it was ‘saved’ by section 6 of the Constitution, since it wasn’t a “law” to begin with.

The Second Set of Reasons

With respect to the second set of reasons, Justice Seepersad turned to section 1 of the Constitution for guidance. Sub-section 1(1) of the Constitution states that “The Republic of Trinidad and Tobago shall be a sovereign democratic State” and, in a democracy, laws which limit or infringe fundamental right and freedoms can only be justified when sufficiently important, minimally impairing and proportional (Sat Maharaj, paras 157 and 158 citing the Supreme Court of Canada in R v. Oakes, [1986] 1 SCR 103 and Jason Jones v. The Attorney General (et al), CV 2017-00720).

Therefore, since the savings clause only applied to the fundamental human rights and freedoms set out in sections 4 and 5 of the Constitution, the Court was free to examine if the impugned provisions of the Act infringed other sections of the Constitution.

More specifically, Justice Seepersad held that since freedom of expression was a fundamental feature of a sovereign democratic State (ibid., paras 145 – 154) – notably quoting Sparrow’s words that “the people of a country should be free to talk their mind” –the impugned provisions of the Act were therefore disproportionate in their reach and effect. In other words, the provisions were unconstitutional in the sense that they undermined basic democratic principles.

Conclusion

AND implications

In declaring that the impugned provisions of the Act lacked the legal certainty to qualify as a “law” in his first set of reasons it could be argued that Justice Seepersad usurped Parliament’s role and supremacy. I take a different view. Justice Seepersad did not usurp the Parliament of Trinidad and Tobago’s role in the least. He declared a colonial-era law to lack certainty. If anything, he questioned the competency of a foreign institution to craft ordinances and laws that would survive modern scrutiny under our Constitution. In my view, he was perfectly entitled to do so at law.

Furthermore, Justice Seepersad was dealing with very specific provisions of the Act. This does not mean that every colonial-era law would lack legal certainty. A case-by-case analysis must still be done.

However, in using section 1 of the Constitution in his second set of reasons to declare that the impugned provisions of the Act were inconsistent with the features of a democratic State, Justice Seepersad may have steered into deep and murky waters of constitutional interpretation. Indeed, if this approach were to be accepted it would render the savings clause inert, since—by definition—the savings clause immunises colonial era laws from what would otherwise amount to infringements of fundamental human rights and freedoms. Put another way, a democratic State would not ordinarily condone the infringement of entrenched rights and freedoms.

It would also lead to a certain measure of unpredictability if courts could “read in” certain democratic principles that may not otherwise be entrenched. For instance, it could be argued that the right to food and the right to shelter are essential features of a democratic State, and therefore any law which seeks to prohibit the feeding of the homeless or which prevents the homeless from seeking shelter in a park for instance would be “unconstitutional”.

Indeed, the State may well succeed on this point. But it would be a hollow victory in my respectful view.

The core jurisprudence is to be found in Justice Seepersad’s first set of reasons. They were Denning-esque. The impugned provisions of the Act are, by any fair and objective reading, woefully inadequate and vague. They cannot meet the definition of a “law”, let alone a law that presumptively deserves the protection of the savings clause.

In the end, however, one wonders what the Government hopes to achieve with its planned appeal (or series of appeals as the Attorney General has already hinted at). The impugned provisions were historically designed to quell unpopular speech against our colonial masters. Trinidad and Tobago has long since moved past such deference and has entrenched certain fundamental human rights and freedoms within our Constitution (unlike England which enjoys no such constitutional entrenchment). For the Government to insist on curtailing those rights and freedoms is simply a continuation of a worrisome trend in this country that unpopular speech must be silenced at all costs. This is, with respect, the antithesis of a democratic post-colonial State.

THE AUTHOR is an attorney-at-law

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