Support for Sedition Act?

INTRODUCTION

The dust has settled. The press has (mostly) hushed. The order has been set aside pending appeal. This is a case which will make its way to the Privy Council in due course, with very high costs paid out to Senior Counsel. Fittingly, I have decided to share my thoughts on Justice Seepersad’s January 13^th, 2020 judgment on sections 3, 4 and 13 of the Trinidad and Tobago Sedition Act.

As someone who runs a blog and who has worked in journalism before, freedom of expression is very dear to my heart. I must emphasise that the idea of sedition laws is not my cup of tea. In my view, all opinions belong in the public arena where we can scrutinise them. If they are not sufficiently robust in the face of scrutiny, we can ridicule and dismiss them.

My beliefs alone allow me to empathise with Justice Seepersad’s stance. I fully endorse his assertion that we must highlight any unjustifiable limits placed on our constitutional right to freedom of expression. Any attempt to erode this right must be properly addressed and I would be the first in line to champion this cause.

Be that as it may, I also must acknowledge that the legal arena is seldom about personal beliefs. Lawyers are trained to interpret and apply the law to facts. Judges, who are trained lawyers with greater power, must do the same. Their power naturally confers a greater responsibility upon them in carrying out their duties.

I am compelled by conscience and by my cherished pre-frontal cortex to say that this judgment does not sit well with me. The procedural point on substitution is not interesting enough for my present endeavours, but I will discuss the substantive content on sedition. To properly communicate my position, I must have a preliminary discussion on the doctrine of separation of powers. This is because it underpins my commentary and provides a framework for understanding the professional role of a judge.

Our Constitution is supreme. It creates three arms of government and each arm has a distinct role.

1. Our executive arm functions administratively. It sets policy. It enforces laws. It generally manages and regulates the day to day functions of the State. It is also the arm which engages internationally in a representative capacity.
2. Our legislative arm is Parliament. It is made up of the Senate and the House of Representatives, which work together with the President to enact law. Its members are both elected and appointed persons who, through drafting, debating, passing and assenting processes, act to advance the collective will of the citizens.
3. Our judiciary is the third arm of government. It functions as a tribunal which interprets and applies law and monitors executive and legislative functions. It does not set policy, but it ensures that policy implementation (law-making) and executive decision-making are done within the confines of legality.

The arms of government may only do what the Constitution allows them to do. If a member of one arm attempts to mix his role with the role of a member of another arm, that is considered an overstep. Such a member would be acting outside of the constitutionally set parameters and all of those actions would be illegal.

This tripartite division of labour, affectionately called the doctrine of separation of powers, exists to insure us against tyranny. Through this mechanism, we are given the assurance that power does not rest with any individual or with any small group of individuals.

COMMENTARY

With the above in mind, I turn to my two issues with the judgment.

Firstly, I am of the view that Justice Seepersad either misunderstood or failed to execute his duty in delivering the judgment. I discuss this at great length below.

My second issue can be discussed more briefly. Simply put, I think that the way that Justice Seepersad has interpreted the constitution has left constitutional law in a very precarious position.

ISSUE 1: MISUNDERSTANDING OF OR FAILURE TO EXECUTE HIS DUTY

As the sitting judge, Justice Seepersad had to decide whether sections 3, 4 and 13 of the Sedition Act were unconstitutional. This was an exercise in interpretation and his necessary first step would have been to figure out the meaning of the words in the sections. This interpretation process involves specific, time-tested rules, principles and presumptions. Within the judgment, there is a complete absence of any reference to these rules, principles and presumptions (with the exception of a misplaced mention of the presumption of mens rea), and it is based on this absence that I advance the first leg of my argument.

In a 51-page judgment, the honourable judge provides a lengthy history of sedition laws and refers to our local Sedition Act. He outlines the claimants’ argument that the sections “offend the principle of legal certainty” and goes through the formidable task of defining legal certainty by quoting several cases. After that, things seem to go awry.

His Lordship concludes that the sections are vague but does not provide any proper reasoning to support this conclusion. No rules of interpretation are applied. No construction is engaged in, or, if it is, no record of this engagement has made its way into the final judgment. We are left hanging in mid-air and have to make a quantum leap from counsel’s argument to this unsubstantiated conclusion. As such, the conclusion that the sections are vague is a non-sequitur when carefully examined.

I agree wholeheartedly that laws must be certain, but I am particularly puzzled that His Lordship has quoted Gallagher v Secretary of State for the Home Department and others [2019] UKSC 3 as supportive of his conclusion.

Gallagher says (and I agree) that law must be accessible to the people subject to it, that those people may need to seek professional legal advice to understand it, and that it must involve a sufficient degree of foreseeability, so that no discretion that is so wide that it can only be enforced by subjective standards, can ever be conferred by law. This is what is known as the principle of legal certainty. Can it be said that the impugned sections of the Sedition Act offend that principle?

If Gallagher references the need to seek professional legal advice for legal interpretation, mere legalese (Complex language or legal jargon which offends common sense and the English language) cannot render any provision vague. This is true even if it is a penal provision. Lawyers are trained to understand legalese, much to our chagrin. It follows then, that a law is vague only if it is impossible for lawyers to figure out what it means when asked to do so, or, if when lawyers do figure out its meaning, it confers a discretion so wide that the legality of its enforcement cannot be objectively scrutinised. The lawyer’s (and judge’s) task is interpretation. They must use established rules, presumptions and principles to figure out what legislation means first. If no mention of these rules, presumptions and principles is made in a 51-page judgment, it naturally favours a presumption that no proper interpretation has been conducted.

Of course it is possible that Justice Seepersad has simply interpreted the legislation before writing his judgment and has given an opinion based on that interpretation. I am not convinced that he has. I say this because he has misquoted section 3(1)(a) of our Sedition Act in a very material way.

When one is interpreting legislation, the way that words are used is extremely important. Where the same words are used in the same way throughout one piece of legislation, they are presumed to have a consistent meaning. The corollary of this is that where words are used differently, they must be construed differently. Parliament is very deliberate with its use of language and so it includes and excludes words, capitalisations and other grammatical and linguistic tools intentionally. Misquoting a provision one is under a duty to interpret frustrates the interpretation process. It is this misquote that I think serves as the final nail in the honourable judge’s coffin where the conclusion on vagueness is concerned. The misquote convinces me that the judgment is delivered on ideological grounds and that the honourable judge was keen on expressing his opinion and not on ascertaining the meaning of the enacted provisions.

SECTION 3

In Paragraph 92 of his judgment, His Lordship says:

            “The words used do not indicate with sufficient certainty, the specific conduct which is prohibited and which is subject to criminal sanction. Section 3(1) defines seditious intent as the bringing of hatred or contempt or the inciting of dissatisfaction against the government. What does dissatisfaction mean? The democratic process is strengthened by vibrant opposition which can challenge the efficacy and effectiveness of governmental policy and performance thereby acting as an essential check and balance against the abuse of executive power. While the Act does provide for, pointing out via lawful means, errors and defects, with a view of effecting reform, the character of what may be viewed as “lawful means” may vary from generation to generation and the pointing out of defects and errors may not necessarily be engaged without inciting dissatisfaction.”

Section 3(1)(a) does not define a seditious intent as the “bringing of hatred or contempt or the inciting of dissatisfaction against the government”. It says that a seditious intention is one which “brings into hatred or contempt or excites disaffection (not ‘dissatisfaction’) against Government (not ‘the government’).”

I acknowledge that typographical errors can happen when humans use word processors, but this is much more than a typographical error. This misquote conveniently favours what is clearly His Lordship’s personal views as echoed throughout the judgment. Justice Seepersad seems particularly convinced that the Sedition Act stifles criticism against the government, and I got the sense that this view was unshakeable. The real question, though, is whether this view withstands scrutiny.

Throughout section 3, ‘Government’ and ‘the government’ are used in different ways. The former is used to create mens rea. The latter is used to clarify an exception to mens rea. These words have distinct meanings.

‘Government’, which is a mass noun used without a definitive article is ‘the system by which a state or community is governed’. In our case, our lawfully implemented democratic system with its three arms is ‘Government’.

‘The government’, which has a definite article, is ‘the group of people with the authority to govern a country or state at a particular time’. The Oxford English Dictionary can be consulted to verify this.

We often forget the importance of definite articles in language and in conveying meaning. They are meant to specify which members of a class are the subject or object of a sentence.

For example, “A fireman was walking down a street.” means that it could be any fireman who was walking down any street. “The fireman was walking down the street.” means that it was one specific fireman who was walking down one specific, albeit undefined, street.

While this may seem like a hairline distinction, hairline distinctions are exactly why the interpretation process is necessary. His Lordship’s failure to acknowledge this fundamental difference in the use of language is clear evidence of him not going through the interpretation process.

If that is not enough, a look at the Sedition Act shows an evident trend, which favours a very narrow interpretation of its provisions.

As Justice Seepersad acknowledged in paragraph 92 of his judgment, section 3(2) of the Sedition Act expressly allows for the intention to point out of errors, criticise etc. This section clarifies that it is completely legal to do something with the intention to excite persons to change any matter within the State by law established through ‘lawful means‘.  

I gather that the honourable judge’s contention is that what is ‘lawful means’ changes and so that provision confers a discretion that is too wide for it to be legally certain. That is a very strange position to hold. The law itself changes over time. There was a time when a man could not rape his wife and now, he very well can. What is lawful can change over time, but that does not blur the lines of what is lawful at any given time. It does not cause vagueness. If it did, then there would be no sensible measure by which the very thing complained of -change- could be tracked! What exactly would be the point of reference?

If an intention to criticise is expressly legal, what is the mens rea under section 3 of the Sedition Act?

In section 3(1)(a), reference is made to the arms of government and their constituent parts and to the Constitution ‘as by law established’. When one pays attention to the definition of ‘Government’ set out above and to these references, it is sensible to conclude that section 3(1)(a) deals with State sovereignty, stability and the rule of law. It is not irreconcilable with our right to freedom of expression at all, but protects it by protecting the system by which it is granted.

‘Seditious intention’ under subsection 3(1)(a) must go beyond mere intention to criticise, or an intention to lawfully campaign to change Government, which are made exceptions under subsection 3(2). Subsection 3(3) of the Sedition Act very clearly requires a tribunal to consider actions from which certain natural consequences flow in determining the fact of mens rea (the mental element of a crime) and so thought crimes are also not created under the Sedition Act. The words in subsection 3(1)(a), when literally construed, have several possible meanings. As such, a construction which considers the legislative purpose is allowed at law. This requires a consideration of the whole piece of legislation.

When the whole of the Sedition Act is considered, I can see that seditious intention under section 3(1)(a) is an intention to incite the complete disregard for or overthrow of lawfully established Government (or its constituent parts) and the Constitution. It is also an intention to do some thing which fosters feelings in others and which would reasonably be expected to cause them to disregard, overthrow or procure the overthrow of lawfully established Government (or its constituent parts) and the Constitution.

I am able to glean this by properly quoting the section, using the definitions of words like ‘contempt’ and ‘disaffection’ which go beyond mere emotions to include disregard and by looking at the other legislative provisions, especially the list of banned publications.

When you hate something so much that you do not find it worthy of consideration, that is contempt. When you have disaffection for something, you are no longer willing to support it. See Oxford English Dictionary as a reference. ‘Hatred’ must be read in that same context and must therefore be construed consistently with the theme of disregard within section 3(1)(a) of the Sedition Act. The constant use of the words ‘as by law established’ also helps, as it emphasises that the sovereignty and legitimacy of the state was at the forefront of legislator’s minds when they enacted this legislation.

Words which have multiple meanings when used in local parlance can have specialised meanings within a legislative regime. Any keen examiner of the Sedition Act would conclude that section 3(1)(a) falls into this specialist category. The banned publications list is comprised of mostly communist propaganda publications. Whether these publications should be banned is a matter for another day, but their nature cannot be ignored. They confirm that the legislators of the day were concerned about the system of government and had the honourable judge bothered to look past his own opinion, he could have figured that out.

Justice Seepersad stated that the Sedition Act was used to prosecute Uriah Butler, whom he described as a freedom fighter. Butler was a historical figure who championed his cause passionately, but we cannot ignore the fact that he was charged in the context of a riot in which a police officer was murdered by persons incensed by his socialist rhetoric. I do not think that His Lordship’s glossing over that fact was prudent…or unintentional.

No mention was made of the attempt at prosecuting the instigators of the 1990 coup under the Sedition Act, but that fact is important. Had they not been given amnesty, they would have been indicted and sentenced under section 4(1)(a) with a mens rea under section 3(1)(b) of the Sedition Act. Would that have been unconstitutional?

His Lordship spoke about the recent indictment of PSA Leader Watson Duke for an offence under the Sedition Act. The case is ongoing and I do not want to comment too much on it, but objectively speaking, when someone says what he did (I am saying this based on some of the extracts I have heard) in this current global climate of terrorism, and especially given what happened in 1990 here in our country, is anyone really surprised by a sedition charge? Why would any sane person insinuate that they like bombs?

With the exception of section 3(1)(c) of the Sedition Act, which is indeed vague when construed, the subsections of section 3 are crystal clear. They deal with intentions to:

• incite overthrow of Government or to cause disregard for specific things as outlined above
• incite genocide
• incite coups d’état or other government interference; and
• encourage racial and other inter-group frictions of various kinds.

SECTION 4

Section 4 of the Sedition Act is equally clear when properly read.

Subsections 4(1)(a) and (b) are self-explanatory. Any person who does any act or communicates any statement having the mens rea created under section 3(1) of the Sedition Act is guilty of an offence. His Lordship acknowledges this in paragraph 103 of his judgment.

Subsections 4(1)(c) and (d) are different because they deal with seditious publications and require us to reference the interpretation section (section 2) of the Sedition Act.

Section 2 says:

“newspaper” means a periodical publication containing any public news or comments thereon or any discussion of political matters”

“seditious publication includes every publication, whether periodical or otherwise, having a seditious intention”

“publication includes all written or printed matter, and every thing whether of a nature similar to written or printed matter or not, containing any visible representation, or by its form, shape, or in any manner capable of suggesting words or ideas, and every copy and reproduction of or extract from any publication”

“publish, in relation to a seditious publication, includes publish the publication, either by itself or as part of a newspaper or periodical or otherwise than as part of a newspaper or periodical, for distribution to the public”

His Lordship states at paragraph 104 of his judgment that:

 “Under Section 4(1)(c), a person need only to publish a statement that expresses a seditious intention. Accordingly, a newspaper, for example, could be found guilty of sedition even if it only reported a “seditious” statement made by someone else.”

He then says at paragraph 105 of his judgment that:

“There is no express requirement in section 4(1)(c) that the publisher of the statement knowingly or recklessly intended to incite others to commit an unlawful act. However, there is a common law presumption that mens rea is an ingredient of every criminal offence, so it must be presumed that, to be found guilty, there is evidence to establish beyond reasonable doubt that the publisher was aware of the nature of the material. It is therefore unsatisfactory that on its face, Section 4(1)(c) seems not to require such knowledge given that the focus is upon material which expresses a seditious intention.”

I am of the view that His Lordship was correct in his general conclusion at paragraph 103. A newspaper that reports (and by reports, I mean quotes) a seditious statement made by another would be guilty of an offence under section 4(1)(c) of the Sedition Act. I do, however, disagree with his reasoning on mens rea.

It is true that mens rea is a presumed element of a crime. This presumption can be rebutted if a clear intention to the contrary is shown or if the section simply creates a regulatory offence. Such a rebuttal means that a strict liability offence is created. It is also true, as His Lordship has stated, that persons must be aware of the nature of the material if they are to be found guilty. Although his Lordship has not mentioned that the presumption of mens rea rebuttable in his judgment, and as a result has presented a skewed view of the law, my issue is with the complete lack of common sense that he articulated with this statement, which I find very unfortunate.

The presumption of mens rea deals with knowledge based intention and operates when a statutory provision is silent on mens rea. It is detailed in the case of Sweet v Parsley [1970] AC 132 which stipulates that a person must intend to do a criminal act if he is to be found guilty of that criminal act, and if his intention is to be established, the prosecution must show that he knew of the thing being done.

Under section 4(1)(c) of the Sedition Act, the criminal acts are the PUBLISHING, SELLING, DISTRIBUTING or OFFERING FOR SALE of a seditious publication. The crime is not doing these things while HAVING a seditious intention. The mens rea under section 4(1)(c) is completely different to the mens rea under sections 4(1)(a) and (b).

It is IMPOSSIBLE for a newspaper reporter to publish a seditious statement while simultaneously claiming a lack of intention to publish that statement. His Lordship’s clearly did not understand what the presumed mens rea was. If he did, then he intended to give an example that was completely divorced from reality and that is depressing at best.

Practically speaking, the presumption of mens rea would only assist persons charged with passively publishing, selling, distributing or offering for sale seditious publications such as books or films which do not show their infringing content at a glance. This assistance comes because if persons do not know of the seditious content hidden within the relevant publications, they cannot be put on alert of their own furtherance of a crime and cannot intend to commit a crime.

Presumptions are presumptions because they need not be express. They are one of the myriad reasons people hire lawyers and why Gallagher mentioned the need for them to do so on some occasions. There is no merit in the argument at paragraph 105 that section 4(1)(c) should have referenced the mens rea. There is especially no merit in an argument that the section should have mentioned the mens rea created under section 3, because that is not the requisite mens rea for the crime created in that subsection.

Since subsections 4(1)(c) and (d) limit what can and cannot be published, his Lordship’s only route to a declaration of unconstitutionality of section 4 would have been to apply the test in Hinds v R [1977] AC 195. He would have had to show that no reasonable Parliamentarian who understood the Constitutional rights of freedom of thought and expression and freedom of the press could have supposed subsections 4(1)(c) and (d) to have been reasonably required to protect the public’s interest.

We can fight tooth and nail about whether publication should be allowed for reporting purposes, but our opinions are irrelevant. When one considers that seditious material threatens the stability of the State, its institutions and its subjects, curtailing the spread of that material is easily justifiable in the public interest. The creation of an absolute penalty for knowingly and intentionally spreading that material is not an unreasonable response to the threat of instability and so it is not likely that the Hinds test would be met. Newspapers can report on seditious material without directly quoting it. They are at liberty to do so, as penal provisions must be strictly interpreted.

SECTION 13

His Lordship acknowledges that Section 13 of the Sedition Act is not ambiguous in Paragraph 106 of his judgment. If sections 3 and 4 are interpreted in accordance with legal rules, presumptions and principles, as done above, then section 13 cannot be deemed unconstitutional.

CONCLUSION ON ISSUE 1

So, if His Lordship has not interpreted the Sedition Act, it would follow that he did not ascertain what the law was at the time. As such, there was no basis on which he could justify his declaration that the sections were unconstitutional. One cannot criticise a law one does not know. While I admire Senior Counsel’s genius argument advanced on the behalf of the claimants regarding our savings law clause, it remained His Lordship’s duty to judge that argument on its merits. A sitting judge cannot allow himself to be seduced by an argument to the extent that he cannot see beyond it. We are shown no useful application of the legal rules of interpretation. We are given no real analysis. We see no independent scrutiny of the claimant’s arguments. As such, it is impossible for me to agree with His Lordship that the sections offend the principle of legal certainty. Further, based on the interpretation I have highlighted above, I am of the view that the sections were not vague enough to offend legal certainty. As such, they could have been saved by our savings law clause.

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ISSUE 2: NOVEL CONSTITUTIONAL INTERPRETATION HAS LEFT CONSTITUTIONAL LAW IN A PRECARIOUS POSITION

My second issue with the judgment is much easier to grapple with and Dr Emir Crowne did a spectacular job of detailing this issue, which affords me the convenience of quoting his Wired 868 article. Dr Crowne summarised His Lordship’s opinion as follows:

            “With respect to the second set of reasons, Justice Seepersad turned to section 1 of the constitution for guidance. Sub-section 1(1) of the constitution states: “The Republic of Trinidad and Tobago shall be a sovereign democratic State.” And, in a democracy, laws which limit or infringe fundamental right and freedoms can only be justified when sufficiently important, minimally impairing and proportional (Sat Maharaj, paragraphs 157 and 158, citing the Supreme Court of Canada in R v. Oakes, [1986] 1 SCR 103 and Jason Jones v. The Attorney General (et al), CV 2017-00720).

Therefore, since the savings clause only applied to the fundamental human rights and freedoms set out in sections 4 and 5 of the constitution, the court was free to examine if the impugned provisions of the Act infringed other sections of the constitution.

More specifically, Justice Seepersad held that since freedom of expression was a fundamental feature of a sovereign democratic State—notably quoting Sparrow’s words that ‘the people of a country should be free to talk their mind’—the impugned provisions of Act were therefore disproportionate in their reach and effect. In other words, the provisions were unconstitutional in the sense that they undermined basic democratic principles.”

Dr Crowne rightly stated that His Lordship, in using such an interpretation, had treaded into murky waters. Further, he asserted that if this method of interpretation was upheld, the savings law clause (section 6 of our Constitution) would be rendered inert and would cause unpredictability, as claimants could ‘read in’ certain democratic rights where these were not otherwise entrenched.

CONCLUSION ON ISSUE 2

Our common law system is predicated on a system of legal precedent. If Justice Seepersad’s new method of circumventing the savings law clause is endorsed, the floodgates will inevitably be opened. This is especially so for our litigious society. I feel no need to speak further on this issue.

GENERAL CONCLUSION

Justice Seepersad approaches cases with fervour. He is our local Lord Denning and I am sure his judgments will give us ample room for argument on technical legal points for a long time. Fervour, however, when divorced from the logical process and from accountability, becomes zealotry. Unchecked zealotry in high office is tyranny waiting to happen.

The judge’s role is distinct because it is necessary in our country. We pay judges large salaries and offer them substantial pensions and security of tenure because we value their role. If they misunderstand or otherwise do not perform that role, Government is undermined and we all suffer as a result. I cannot endorse any action which favours that outcome.

Our Constitution is sacrosanct and the courts should not make a fool of it by arbitrarily employing it to overstep Parliament. It is admittedly imperfect. Constitutional reform, especially in respect to the savings law clause, remains of utmost importance. Its imperfections, however, can only be ameliorated through due process and by our lawfully constituted Parliament in accordance with its provisions. Anyone with an inkling of respect for democracy would agree with this.

The separation of powers must be respected and held dear to our hearts. There are people in other countries who suffer tremendously because there is no rule of law.  This doctrine protects us from ourselves and from persons who mean us harm. Sometimes, we may not like the laws which are used to govern us. Despite our feelings, we must do our jobs within its confines while we use the lawful avenues available to us to change them. We are tied together by a bond of nationality and though we may not always feel like it, we are very fortunate to live in Trinidad and Tobago where no one person or small group is supreme.

I feel like I am mandated to say that the esteemed judges who ensure that our laws and legal system are not brought into disrepute ought not to treat lightly with their duty to us all. Their creativity in completing this task is welcome, but it must always be subject to a robust logical process. They are not legislators. Some of them may want to be, but that is not what we have hired to be. If they wish to do Parliament’s job, they should run for office at elections.

I hope that I have clearly articulated why I do not agree that the Sedition Act, as presently worded, offends the principle of legal certainty and why I do not think that it is inconsistent with the principles, tenets and characteristics of a sovereign democratic state. It is always unfortunate to find myself disagreeing so vociferously with a sitting judge, but that goes to the heart of our democracy. Ironically, it is a right acknowledged and preserved by the legislation that is the subject of this staunch disagreement.