Vijay Maharaj v The Attorney General of Trinidad and Tobago

• Jurisdiction: Trinidad & Tobago
• Judge: Mr. Justice Frank Seepersad
• Judgment Date: 13 January 2020
• Neutral Citation: TT 2020 HC 7
• Court: High Court (Trinidad and Tobago)
• Docket Number: Claim No. CV2019-02271
• Date: 13 January 2020

Between

Vijay Maharaj

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

First Claimant

Central Broadcasting Services Limited

Second Claimant

and

The Attorney General of Trinidad and Tobago

Defendant

Before

the Honourable Mr. Justice Frank Seepersad

Claim No. CV2019-02271

IN THE HIGH COURT OF JUSTICE

Port of Spain

Appearances:

1. Mr. Ramesh Lawrence Maharaj S.C., Mr. Jagdeo Singh, Mr. Kiel Taklalsingh, Mr. Dinesh Rambally, Mr. Stefan Ramkissoon instructed by Ms. Rhea Khan, Attorneys-at-law for the Claimants.

2. Mr. Fyard Hosein S.C., Ms. Vanessa Gopaul, Mrs. Josefina Baptiste-Mohammed instructed by Mr. Vincent Jardine, Attorneys-at-law for the Defendant.

DECISION

Table of Contents

Introduction:	2
RELEVENT FACTUAL BACKGROUND	5
Locus Standi of the Second Claimant	8
Summary of the Claimants' arguments in relation to the substantive relief sought:	11
The common law history of Sedition	12
This Republic's Sedition Legislation	14
THE ISSUES	16
ISSUE 1: Whether Sections 3, 4 and 13 of the Sedition Act are vague and offend the principle of legal certainty	16
Treatment of savings law clauses in the Commonwealth Caribbean	21
Issue 2: Whether the sedition offences are inconsistent with characteristics, features and tenets of a sovereign and democratic State	34
Conclusion	49

Introduction:

1 Before the Court for its determination is the fixed date claim filed on 31 ^st May 2019. The Claimants are essentially challenging three provisions of the Sedition Act Ch. 11:04 namely sections 3, 4 and 13 (the impugned provisions). The specific relief prayed for is as follows:

• 1. A declaration that sections 3, 4 and 13 of the Sedition Act Ch. 11:04: (1) 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 (2) are unconstitutionally vague and offend the rule of law.

• 2. 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 (“ the 1976 Constitution”):

  • 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.

• 3. A declaration that in so far as Section 6 of the Constitution (the existing law provision) may operate to save the impugned enactments of law, it would amount to a denial of the protection of law and/or an unlawful ouster of the Court's jurisdiction to determine and preserve the constitutional rights of the Claimants.

• 4. A declaration that Section 6 of the Constitution itself is inconsistent with the Claimants' fundamental rights, including access to justice, and is further inconsistent with basic underlying principles of the Constitution and therefore is illegal, null and void and of no effect.

• 5. A declaration that sections 3, 4 and 13 of the Sedition Act, either individually or collectively, infringe Section 1 of the Constitution in that they are inconsistent and/or incompatible with the characteristics, features and tenets of a democratic state and therefore void and of no effect pursuant to Section 2 of the Constitution.

• 6. An order that the Defendant, his servants and/or agents and/or police officers and all those acting in concert with them or howsoever otherwise be restrained and enjoined pending the final determination of the issues arising in these proceedings and on that determination be permanently restrained and enjoined from exercising any of the powers, rights or duties respecting the enforcement of the Sedition Act against the Claimants insofar as it purports to confer such rights, powers and duties on the Defendant, his servants and/or agents including police officers.

• 7. Such other orders, writs and directions as it may consider appropriate for the purpose of enforcing or securing the provisions of this chapter to the protection of which the person is entitled.

• 8. Costs.

• 9. Such other and further relief as the Court deems appropriate.

2 Subsequent to the filing of the fixed date claim, Satnarayan Maharaj, the first named claimant, departed this life.

3 This Court, in a separate judgment, granted an order and substituted Vijay Maharaj to act on behalf of the deceased First Claimant's estate.

Resolution of the substantive matter:

4 The parties agreed that the resolution of the substantive matter revolved around questions of law and was not fact dependent.

The Evidence:

5 The Claimants relied upon an affidavit of the deceased First Claimant sworn on 31 ^st May 2019 and a supplemental affidavit sworn on 26 ^th July 2019.

6 The Defendant relied upon two affidavits, namely, the affidavits of Wayne Stanley and Raymond Patrick both dated 7 ^th October 2019.

RELEVENT FACTUAL BACKGROUND:

7 The deceased First Claimant was a Hindu civil rights leader, religious leader, cultural activist, media personality and journalist.

8 The deceased First Claimant hosted a ‘call-in’ talk-show called “ The Maha Sabha Strikes Back”. This talk-show was aired through the Second Claimant and he frequently offered commentary and callers expressed their opinions on various issues which touch and concern life in Trinidad and Tobago.

9 The deceased First Claimant was also very outspoken and was viewed by some as a controversial figure. He was not known to be measured and was unapologetically critical of several politicians including the current Government and governmental policies. He often used his talk-show to vigorously critique the Government and to convey strong and at times, provocative and or sensational statements on matters of public interest.

10 The Second Claimant is a company duly incorporated under the Laws of Trinidad and Tobago and operates from Corner Pasea Main Road extension and Churchill Roosevelt Highway Tunapuna. It is engaged in the business of multi-media services.

11 The deceased First Claimant was the founder and managing director of the Second Claimant and was authorised by the Board of Directors of the Second Claimant to swear to and sign the affidavits filed in support of the present application.

12 In April 2019, the deceased First Claimant made certain statements which were viewed by the Telecommunications Authority of Trinidad and Tobago (the “ TATT”) as statements which “ can be seen as divisive and inciteful” and the TATT issued the Second Claimant with a warning on April 17, 2019.

13 The statements made by the deceased First Claimant on the programme, “The Maha Sabha Strikes Back” were included in the affidavit of Wayne Stanley filed on October 7, 2019 and are 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 able 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. That 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 market. And you know how much our Prime Minister paying our money? Everyday 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 takes 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.”

14 On April 18, 2019, police officers purportedly executed a search warrant on the premises of the Second Claimant.

15 Attorneys-at-Law acting for the Claimants wrote to the Commissioner of Police, requesting a copy of the said search warrant.

16 Judicial...