Justice Mark Mohammed

Lawyers representing the son of former Sanatan Dharma Maha Sabha (SDMS) secretary-general Satnarayan Maharaj have filed for conditional leave to lodge a final appeal in his legal challenge against this country’s colonial-aged sedition legislation.

In their motion for conditional leave to take the case before the United Kingdom-based Privy Council, lawyers representing Maharaj’s son Vijay are claiming that three Court of Appeal Judges got it wrong when they recently overturned a High Court Judge’s decision to strike down aspects of the legislation which he ruled were unconstitutional.

According to the court filings obtained by Guardian Media, Maharaj’s lawyers identified almost two dozen instances where they felt that the appeal panel erred in law in its decision. The application will now have to be considered by a fresh Court of Appeal panel before the final appeal is filed before the Privy Council. In the unlikely event that they are denied leave by the local court, an application can be made directly to the Privy Council.

In their decision, Appellate Judges Mark Mohammed, Charmaine Pemberton and Maria Wilson ruled that High Court Judge Frank Seepersad was wrong to uphold Maharaj’s lawsuit. While Seepersad ruled that segments of the Sedition Act were too vague and uncertain to be considered a valid law, the judges disagreed.

“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 describes 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 that there was a level of flexibility with changing circumstances and societal evolution.

“Actions which historically might have had a tendency to deprave and corrupt or to shock and outrage the feelings of the general public or sections of the public, would not necessarily have the same impact in contemporary times,” they said.

The panel ruled that legislation was exempt from judicial intervention as it was legitimately protected by the constitutional saving clause, which protects similar pre-Independence legislation from review.

Despite essentially reversing Seepersad’s decision in the case, the appeal panel did rule that Seepersad was correct to allow Maharaj’s son to continue the case after his father’s death in late 2019.

Maharaj filed the lawsuit after police executed search warrants on the SDMS’s media house, Central Broadcasting Services Limited (CBSL), after he made a series of incendiary statements on his Maha Sabha Strikes Back programme on TV Jaagriti on April 15, 2019. Maharaj had claimed that citizens living in Tobago are lazy and labelled the men as rapists. No criminal charges were eventually brought against Maharaj or CBSL.

When the Office of the Attorney General brought the appeal, it successfully applied for a stay of the judgement pending the outcome of the appeal.

The suspension of Seepersad’s judgement meant that the DPP’s Office could continue the prosecution of its sedition cases, including one against Jamaat-al-Muslimeen leader Yasin Abu Bakr.

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 a sedition charge against him.

Maharaj’s son is being represented by Ramesh Lawrence Maharaj, SC, Jagdeo Singh, Dinesh Rambally, Kiel Taklalsingh, Stefan Ramkissoon and Rhea Khan.