The Attorney General of Trinidad and Tobago v Vijay Maharaj

• Jurisdiction: Trinidad & Tobago
• Judge: M. Mohammed, JA,C. Pemberton, JA,M. Wilson, JA
• Judgment Date: 26 March 2021
• Neutral Citation: TT 2021 CA 6
• Docket Number: Civ. App. No. P023 of 2020
• Court: Court of Appeal (Trinidad and Tobago)

IN THE COURT OF APPEAL

Panel:

M. Mohammed, JA

C. Pemberton, JA

M. Wilson, JA

Civ. App. No. P023 of 2020

Claim No. CV2019-02271

Between

The Attorney General of Trinidad and Tobago

Appellant

and

Vijay Maharaj

Substituted on behalf of the Estate of Satnarayan Maharaj for Satnarayan Maharaj

First Respondent

and

Central Broadcasting Services Limited

Second Respondent

APPEARANCES:

Mr. F. Hosein S.C., Ms. V. Gopaul, Ms. K. Madhosingh, Ms. A. Romain, Mr. S. Julien and Mr. V. Jardine appeared on behalf of the Appellant.

Mr. R. L. Maharaj S.C., Mr. J. Singh, Mr. D. Rambally, Mr. K. Taklalsingh, Mr. S. Ramkissoon and Ms. R. Khan appeared on behalf of the Respondents.

TABLE OF CONTENTS

▪ INTRODUCTION	page 4
▪ BACKGROUND	page 5
▪ THE TRIAL JUDGE'S FINDINGS	page 10
▪ THE APPEAL
[A] The Substitution Issue
○ An “always speaking” interpretation of section 27 of the Supreme Court of Judicature Act	page 14
○ The meaning of “Vested”	page 19
○ Can those “vested” claims survive for the benefit of SM's Estate	page 19
○ The Procedure	page 22
[B] The Legal Certainty Argument:
○ Basic Rules of Interpretation	page 23
○ Whether the relevant sections of the Sedition Act are too vague and therefore do not constitute a “law”	page 25
○ Context and Time — Social/Cultural/Racial Issues	page 43
○ The Importance of Precedent: The ability of the courts to provide interpretative guidance	page 55
○ Are the impugned sections of the Sedition Act saved law by virtue of section 6 of the Constitution?	page 57
○ Whether the rule of law is an interpretation principle or a core constitutional principle?	page 60
○ The protective safeguards	page 64
[C] Section of 1 of the Constitution and the Meaning of Sovereign Democratic State	page 71
○ The nature of section 1 of the Constitution	page 75
○ Sovereign Democratic State and the effect of the interpretation of section 1 of the Constitution	page 77
○ Sections 1, 4, 5 and 6 of the Constitution and the Rule of Law argument	page 78
○ The nature of section 2 of the Constitution and its impact if any on section 6	page 80
[D] Other Issues: The Prematurity and Academic Nature of the Claim	page 83
▪ SUMMARY OF THE DECISION	page 84
▪ DISPOSITION	page 86
▪ ORDER	page 87
Appendix 1: The Hansard Reports on the Seditious Publications Ordinance 1920	page 89
Appendix 2: Meetings of the Joint Select Committee of both Houses of Parliament appointed to consider “The Draft Constitution of Trinidad and Tobago”	page 124

Joint Judgment delivered by: M. Mohammed, J.A., C. Pemberton, JA and M. Wilson, J.A.

INTRODUCTION

1 This is an appeal by the Attorney General against the decision of the trial judge in which he found:

• (a) In relation to the issue of substitution, that Vijay Maharaj (VM) could be properly substituted for and on behalf of the estate of the deceased First Respondent, Satnarayan Maharaj (SM).

• (b) In relation to the substantive matter, that sections 3 and 4 of the Sedition Act Chapter 11:04:

  • (i) Contravene the principles of legality and/or legal certainty in that they are vague, uncertain and therefore illegal, null, void and offend the rule of law;

  • (ii) Infringe the right of the individual to enjoy freedom of thought and expression, the right to join political parties and express political views and the right to freedom of the press, which are all tenets of a sovereign democratic state. Individually or collectively, these provisions infringe the binding declaration contained in section 1 of the Constitution; and

  • (iii) Are, pursuant to section 2 of the Constitution, void to the extent of their inconsistency with the Constitution.

2 The core issues in this appeal are:

• (a) Whether VM was properly substituted on behalf of the estate of SM;

• (b) Whether sections 3 and 4 of the Sedition Act offend the rule of law and the principle of legal certainty, because the legal profile of the sedition offences is too broad, variable and uncertain; and

• (c) Whether sections 3 and 4 of the Sedition Act are inconsistent and incompatible with the characteristics, features and tenets of a sovereign democratic state as declared in section 1 of the Constitution and are consequently void and of no effect as they offend the supremacy of the Constitution as provided for under section 2.

BACKGROUND

3 SM was a Hindu civil rights leader, religious leader, cultural activist, media personality, journalist and Attorney-at-law. The Second Respondent, Central Broadcasting Services Limited (CBSL), is a company engaged in the supply of multi-media services. SM was the founder and managing director of CBSL. CBSL operates a radio station called Radio Jaagriti. SM hosted a bi weekly “call-in” show called ‘The Maha Sabha Strikes Back’, which was aired on Radio Jaagriti. During that programme, SM offered commentary and facilitated the opinions of listeners on various issues, which they thought affected Trinidad and Tobago.

4 In April 2019 during the programme, SM allegedly made certain statements which were viewed by the Telecommunications Authority of Trinidad and Tobago (the ‘TATT’) as ‘divisive and inciteful’. On April 17, 2019, the TATT issued a warning to CBSL. 1 The statements allegedly made by SM were annexed to the affidavit of Ag. Insp. Wayne Stanley

a witness for the appellant). 2 They were as follows:

And now let's get down to Tobago ah little bit and what's happening there. Nothing going correct in Tobago. They lazy, six out ah ten of them working for the Tobago House of Assembly, getting money from Port of Spain. They doh want wok and when they get a job. They go half pass nine and ten o' clock they go for tea, breakfast. The rest of them abled bodied men they doh wah no wok ah tall. Run Crab Race, run Goat Race and go on the beach hunting for white meat. Yuh see ah white girl dey. They rape she, they take away all she camera and everything. This record inno. This is what Tobago is all about but anything they want, they going to get.

So now we have a lot of ferries ahready. Our Prime Minister is renting a ferry to take Tobagonians from Scarborough bring them to Port of Spain so they could buy market in Port of Spain market. They ain't growing nothing dey, they coming to make market inno. From Tobago we paying for them to come and pay (make) market. And you know how much our Prime Minister paying our money? Every day two hundred and sixty three thousand five hundred and eighty dollars a day. For this boat to bring them lazy people from Scarborough to come and make market in Port of Spain and take them back. They wouldn't grow nothing they. They wouldn't grow nothing, when they ketch they crab is to run race and when they mind they goat, is to run race. They come in Port of Spain, growing nothing.

We paying, we the tax payers in Trinidad, we paying. Whatever Tobago wants, Tobago gets and I am saying, we should they change

the name of this country? We are no longer Trinidad and Tobago, we are Tobago and Trinidad. We are subservient to them, right. And this big mouth man, rasta man called Attorney General Fitzgerald Hinds, when people make statements, he like to chastise them, insult them. A lady made a statement. Hadad said the government mix messaging of the situation in Tobago was not helping the sea bridge because the government was giving different messages. The response of Fitzgerald Hinds is that, ‘if the woman normal’. Once you disagree with them, you are not normal. Once you point out the truth you are not normal. Well I say Hinds go and spend time seeing about your hair because it take you two days to plait them. The woman is normal and I believe she is more normal than you. That is why the fella in Sealots kick water on you, right. (sic)

5 On or around April 17 2019, it came to the attention of the police that an open source publication of these statements was circulating on social media and they commenced an investigation. Legal Counsel advised the police that they should obtain the original broadcast to determine whether the statements might possibly have been of a seditious nature. The police obtained two search warrants for execution at Radio Jaagriti's premises. The first warrant executed on April 18, 2019, was unsuccessful. By the time the second warrant was executed on June 13 2019, it was determined that the statements in question were made on April 9 2019. The second warrant yielded audio and video recordings of the statements imputed to SM. Investigations continued.

6 Because of the ongoing investigations, SM presumed that the police officers held the view that either he or CBSL committed an offence under the Sedition Act and they intended to initiate criminal charges against him. He was concerned about the possibility of being criminally charged, prosecuted and sanctioned for ‘exercising his right to freedom of expression and to conduct himself as a media practitioner’. 3 On May 31, 2019, SM and CBSL filed a constitutional motion challenging certain provisions of the Sedition Act, namely, sections 3, 4 and 13. By that motion, they sought the following declaratory relief:

• (a) A declaration that sections 3, 4 and 13 of the Sedition Act Ch. 11:04: (i) contravene the principle of legality and/or legal certainty, in that they are vague, uncertain and therefore illegal, null and void and of no legal effect; and (ii) are unconstitutionally vague and offend the rule of law.

• (b) A declaration that sections 3, 4 and 13 of the Sedition Act infringe the following fundamental rights and freedoms guaranteed under the Constitution of the Republic of Trinidad and Tobago: (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...