Derek Achong

High Court Judge Frank Seep­er­sad is ex­pect­ed to de­liv­er his judg­ment in for­mer Sanatan Dhar­ma Ma­ha Sab­ha (SDMS) sec­re­tary-gen­er­al Sat­narayan Ma­haraj’s nov­el con­sti­tu­tion­al chal­lenge against this coun­try’s colo­nial-age sedi­tion leg­is­la­tion on Jan­u­ary 13. 

Seep­er­sad re­served his judg­ment in the case af­ter hear­ing sub­mis­sions from Ma­haraj’s lawyers and those for the  At­tor­ney Gen­er­al’s Of­fice at the Hall of Jus­tice in Port-of-Spain.

The tri­al of the case be­gan with sub­mis­sions on whether Ma­haraj’s fam­i­ly should be al­lowed to sub­sti­tute his son Vi­jay as the claimant in the law­suit as he (Ma­haraj) passed away on No­vem­ber 16

Seep­er­sad elect­ed to hear the sub­mis­sions and de­liv­er his rul­ing on the ap­pli­ca­tion to­geth­er with his find­ings on the sub­stan­tive is­sues in the case, in­stead of deal­ing with them sep­a­rate­ly. 

The ap­pli­ca­tion was strong­ly op­posed by the AG’s Of­fice that claimed it was un­nec­es­sary in the cir­cum­stances. 

“At the end of the day, the case is about a threat of con­tra­ven­tion of the Con­sti­tu­tion. That threat has evap­o­rat­ed now that he is de­ceased,” at­tor­ney Vanes­sa Gopaul said, as she claimed that the sub­sti­tu­tion was not an au­to­mat­ic right. 

Gopaul al­so claimed that the case could pro­ceed with­out the sub­sti­tu­tion as the SDMS is a sec­ondary claimant. 

Ma­haraj’s lawyer Ramesh Lawrence Ma­haraj, SC, strong­ly dis­agreed. 

In his sub­mis­sions on the sub­stan­tive law­suit, Ma­haraj sought to give a his­tor­i­cal per­spec­tive on the Sedi­tion Act, which was passed by the un­elect­ed Leg­isla­tive Coun­cil in 1920 to mir­ror sim­i­lar leg­is­la­tion in the Unit­ed King­dom. 

“It was re­al­ly to cur­tail free­dom of speech to pro­tect the King,” Ma­haraj ex­plained. 

As he not­ed that such leg­is­la­tion has since been re­pealed in the UK, Ma­haraj claimed it is in­con­sis­tent with the “char­ac­ter­is­tic fea­tures” of a de­mo­c­ra­t­ic so­ci­ety as it pre­vents cit­i­zens from chal­leng­ing, con­demn­ing and crit­i­cis­ing the gov­ern­ment. 

“It may have been nec­es­sary un­der for­eign rule not when T&T be­came a sov­er­eign de­mo­c­ra­t­ic state,” Ma­haraj said. 

Ma­haraj al­so claimed that the leg­is­la­tion should be in­val­i­dat­ed as it is over­ly broad, vague and un­cer­tain. He claimed that the sit­u­a­tion left cit­i­zens con­fused over whether they are in breach of leg­is­la­tion.

“If the court is forced to guess the el­e­ments of the of­fence, then the con­vic­tion for it would be un­safe,” Ma­haraj said. 

Re­spond­ing to Ma­haraj, Se­nior Coun­sel Fyard Ho­sein called on Seep­er­sad to re­ject the le­gal chal­lenge. 

De­scrib­ing the law­suit as a “pre-emp­tive strike” by Ma­haraj when he was be­ing in­ves­ti­gat­ed by po­lice, ear­li­er this year, Ho­sein claimed that the law­suit may lead a moun­tain of lit­i­ga­tion from per­sons at­tempt­ing to avoid be­ing pros­e­cut­ed. 

While Ho­sein ad­mit­ted that sedi­tion laws had been re­moved in some coun­tries, he not­ed that they still ex­ist in South Africa and Cana­da. 

“The right to crit­i­cise does not mean you can not at­tract the penal­ties every State has put in place to pro­tect its in­tegri­ty,” Ho­sein said. 

Ho­sein al­so con­tend­ed that Ma­haraj’s lawyers had failed to jus­ti­fy the need the by­pass the leg­is­la­tion’s sav­ings clause, which on­ly al­lows it to be ju­di­cial­ly re­view in cer­tain cir­cum­stances.

In the law­suit, Ma­haraj’s lawyers are claim­ing that the leg­is­la­tion breached cit­i­zens’ con­sti­tu­tion­al rights to free­dom of thought and ex­pres­sion, free­dom of the press and free­dom of as­so­ci­a­tion and as­sem­bly. 

They claim that Sec­tion 3 and 6 of the leg­is­la­tion, which de­fines a sedi­tious in­ten­tion and the pub­li­ca­tion of such, is un­pre­dictable and al­lows for dis­crim­i­na­tion.

In or­der to suc­ceed in the claim, Ma­haraj’s lawyers must al­so get past the leg­is­la­tion’s sav­ing clause, which pre­cludes it from ju­di­cial in­ter­pre­ta­tion ex­cept in sce­nar­ios when it can be found in­com­pat­i­ble with the pro­vi­sions of the con­sti­tu­tion. 

They con­tend that the sav­ings clause was on­ly meant for a lim­it­ed pe­ri­od of time and should be de­clared un­de­mo­c­ra­t­ic and un­con­sti­tu­tion­al. 

Ma­haraj filed the law­suit af­ter po­lice ex­e­cut­ed search war­rants on the SDMS’s me­dia house Cen­tral Broad­cast­ing Ser­vices af­ter Ma­haraj made a se­ries of in­cen­di­ary state­ments on his Ma­ha Sab­ha Strikes Back pro­gramme on TV Jaagri­ti on April 15. 

Ma­haraj claimed that cit­i­zens liv­ing in To­ba­go are lazy and la­belled the men as rapists.

While no crim­i­nal charges have been brought against Ma­haraj and he sug­gest­ed that such was in­evitable while ad­dress­ing sup­port­ers dur­ing SDMS In­di­an Ar­rival Day cel­e­bra­tions.

Sev­er­al trade unions con­sid­ered join­ing Ma­haraj’s claim af­ter Pub­lic Ser­vices As­so­ci­a­tion (PSA) Pres­i­dent Wat­son Duke was charged with sedi­tion over state­ments he made dur­ing a protest at TSTT, last year. How­ev­er, no one stepped for­ward to for­mal­ly join the case. 

Ma­haraj is al­so be­ing rep­re­sent­ed by Jagdeo Singh, Di­nesh Ram­bal­ly, Kiel Tak­lals­ingh, Ste­fan Ramkissoon and Rhea Khan. The AG’s Of­fice was al­so rep­re­sent­ed by Josephi­na Bap­tiste-Mo­hammed and Sean Julien.