Justice Mark Mohammed

The Court of Appeal has overturned a judge’s decision to strike down aspects of this country’s colonial-age sedition legislation.

Delivering a written judgement during a virtual hearing yesterday, Appellate Judges Mark Mohammed, Charmaine Pemberton and Maria Wilson ruled that High Court Judge Frank Seepersad got it wrong when he upheld the case brought by former Sanatan Dharma Maha Sabha (SDMS) secretary-general Satnarayan Maharaj, before his death in November 2019.

While Seepersad ruled that segments of the Sedition Act were too vague and uncertain to be considered 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 described 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 also noted that the legislation had met the specific objectives required to be deemed a valid law, including providing fair notice to citizens of the prohibited conduct and being defined with sufficient clarity so an attorney would not be required for a citizen to understand it.

It also noted that there were checks and balances to prevent arbitrary prosecutions by the police, including a requirement for the consent of the Director of Public Prosecutions (DPP) and the ability of judicial officers to provide interpretative guidance.

The panel also 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 Vijay to continue the case after his father’s death.

“We cannot say that the trial judge failed to discharge his responsibility and therefore was plainly wrong in his handling of these issues. There was no obligation that was shirked,” they said.

Following the ruling, attorney Vanessa Gopaul, who was part of the legal team for the Office of the Attorney General, requested that Maharaj’s son pay legal costs.

“This is a case that ought not to have been pursued from the onset,” Gopaul said.

Ramesh Lawrence Maharaj SC, who led Maharaj’s legal team, challenged the position, as he revealed his client intends to appeal to the Privy Council.

“We do not think this case ought not to be pursued and it would be pursued further,” Maharaj said.

Gopaul challenged the suggestion, as she claimed a final appeal could be pursued as neither Maharaj nor the SDMS is affected by the legislation, as it contains a one-year limitation period on prosecutions.

The panel eventually agreed to make each party bear its own legal costs for the appeal.

Maharaj filed the lawsuit after police executed search warrants on the SDMS’ 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 claimed that citizens living in Tobago were lazy and labelled the men as rapists.

While no criminal charges were eventually brought against him or CBSL, he suggested that such was inevitable while addressing supporters during SDMS Indian Arrival Day celebrations.

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

Appellate Judge Alice Yorke-Soo Hon ruled that the suspension was necessary to protect two pending matters being prosecuted by the Office of the Director of Public Prosecutions (DPP) and to prevent a myriad of legal challenges to other existing laws.

Yorke-Soo Hon noted that if the judgement is successfully appealed, the DPP’s Office would not be able to relay the charges currently being prosecuted, as the legislation has a one-year limitation period for doing so.

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 the sedition charge against him.

Maharaj’s son is also being represented by Jagdeo Singh, Dinesh Rambally, Kiel Taklalsingh, Stefan Ramkissoon and Rhea Khan. The AG’s Office was also represented by Fyard Hosein SC, Sean Julien and Vincent Jardine.