Chris Must List Arrest

I see we’ve gotten back to the Sedition Act, Trinidad and Tobago! How fun!

In 2019, I wrote about the Vijay Maharaj sedition/constitution case, and why I disagreed with the High Court finding of unconstitutionality despite hating the Act. That judgment has since been overturned on appeal (duh!). I continue to hold the view that the Act is constitutional despite hating its substance and being a free speech absolutist. Now, Canadian vlogger, Christopher “ChrisMustList” Hugh has been arrested for sedition (from what I can tell).

Do I think he is guilty under section 4(1)(c) of the Sedition Act? Long story short, yes.

As a watcher of his vlogs, I recall one video in which an interviewee called for an uprising to the system. This was included in the vlog, which was published on the ChrisMustList YouTube channel. For reasons discussed in my previous Sedition Act essay linked above, the mens rea under sections 4(c) and 4(d) of the Act is not “a seditious intention,” but an intention to publish. ChrisMustList, as a vlogger, always intends to publish his vlogs. The sole question in respect of that sedition charge under subsections 4(1)(c) and (d) would, therefore, be whether the thing he published was seditious. I think a call to uprise and overthrow the system in the manner I recall in the video is, by definition, seditious. That’s the boring part.

Do I think this should be a law? No. Arresting and convicting people for acts carried out with seditious intention in the narrow sense contemplated by the Act in sections 4(1)(a) and 4(1)(b) is fine. Arresting people for passively publishing under sections 4(1)(c) and 4(1)(d) simply does not accord with the purpose of criminal law. It does not prevent, deter, reduce, or punish for the substantive crime. It does not rehabilitate criminals. It is just a law for having a law’s sake, and it gives government the power to arrest people for passively (even unknowingly) disseminating seditious content.

If we think it through, what does arresting, prosecuting, and convicting ChrisMustList do about the threatened uprising by the interviewee? Absolutely nothing. What does it do about crime or gang violence in Trinidad and Tobago? Absolutely nothing. What does it do for Trinidad and Tobago? Zip! It is convenient to arrest him because it adds a notch to the TT Police Service’s belt if they achieve a conviction, but it is simply productive unproductiveness. I find it shameful.

The more interesting conversation that we should be having is why this section of law is still on the books. Why has our Parliament not done its job by enacting up-to-date legislation to address our modern needs? The same can be said about the mandatory death penalty and other sections in the Offences Against the Person Act and the Sexual Offences Act, and several other pieces of legislation. Why do we keep having to do judicial gymnastics to get around parliamentary laziness?

I believe that there is too much job security for elected officials who have no real incentives to offer sensible policy solutions. They are reelected regardless of what they do, say, or omit to do. Can we please vote more sensibly next year? What would that even look like?

Newspapers are Unserious.

I’m a libertarian, and as a libertarian, very few things provoke an emotional response in me. My sacred cow is that I do not believe in the veneration of sacred cows, and generally speaking, I prefer pragmatism and efficiency over much else. Be that as it may, encroachments on freedom of thought and expression cause me a particular kind of gripe which I must address. I am at least somewhat moralistic about these topics, but there are practical reasons, such as the need for efficient social intercourse, and the value of having the most information available to the public, which I use to justify my moral fervour in this regard. It disappoints me that the journalistic standards applied in Trinidad and Tobago, much like the politics, are from and for the gutter. Everyone seems to be in a race towards the bottom of a very deep, very murky drain.

In 2016, a gang of blood-thirsty dogs, armed with social clout, credentials and, frothing at the mouth, successfully conspired to expel my friend, satirist Kevin Baldeosingh, from the Trinidad and Tobago Guardian. The stab to the back came mere days after the paper’s management had confirmed the renewal of his contract as a columnist. The excuse given was finances, but it was obvious that the contents of his weekly column making the case that a Muslim woman was making a rational choice by choosing to wear her hijab at the expense of a job, was twisted to make him seem discriminatory and used to justify the sudden 180. The newspaper even apologised, and only one other columnist said anything to defend Kevin’s right to think and say what he wanted…he eventually was convicted of attempted murder and conspiring to execute his ex-girlfriend in Florida, but that’s a story for another day. Kevin was and still is a devoted family man. He had two toddlers and a young wife who was studying at the time. He had bills. It must have been a shock. I can only imagine how disorienting that experience would have been.

Now, I must clarify that the newspapers also have a right of freedom to associate. By no means are they obligated to hire someone unless they want to do so. If it was a matter of merely ending a contract, I would have very little to say. The media massacre that ensued, followed by the obvious blacklisting and silencing of a writer who had the longest-running and one of the highest-grossing columns in Trinidad and Tobago history distinguishes this situation and makes it more than an expression of the newspapers’ freedom to associate. This is especially so, because some months later, a columnist and gender feminist, Dr. Gabrielle J. Hosein, would casually thank her co-conspirators for assisting her with Kevin’s ousting using her column. The crime was, in reality, him daring to disagree with her ideas over the years, but she framed it as him targeting and bullying her. All he did was provide evidence which was contrary to her narrative and obvious agenda in a satirical way? Hosein’s lack of compunction and her clear use of her victim card to gather her troops—typical of female bullies—no doubt disturbed me. But it was the fact that she used the media to champion her anti-free speech, tribalistic position which made me want to vomit. That felt like mockery of liberal democracy itself!

Perhaps the problem lies there? Maybe the expectation that the Trinidad and Tobago media would seek to preserve its own reliability and integrity was too high. Maybe it is filled with members who are morally bereft. I know that what disgusts me clearly does not disgust others and I suppose that that sufficiently explains what transpired. This would also explain the complete failure of the journalistic institutions during the Covid-19 Pandemic of the last three years. I do not think that freedom of thought and expression should be partisan issues. These encroachments should disgust anyone remotely interested in living in a free, prosperous and healthy society. I am not sure how to make that ideological front the true and only tribal war.

That being said. imagine my complete surprise, though, when I read the March 1, 2023, Editorial by Mr. Curtis Williams, Trinidad and Tobago Express’ new Managing Editor, and learnt that contrary to my understanding, the media powers that be in Trinidad and Tobago care about protecting freedom of thought and expression. Utter shock! Understand that I try my best not to be a hypocrite. That others can freely engage in grand acts of hypocrisy such as this without feeling anything is the eighth wonder of the world to me. Mr. Williams and his editorial team are worthy of a place in The Guinness Book of World Records for this feat. I know that Kevin has been trying to write locally again. I know that I (and others) have been petitioning to have him write locally again since 2016. And, although Mr. Williams is fairly new to his role as managing editor, I know that he knows of this miscarriage of justice, because I wrote a letter to the editor in response to his flowery editorial some time ago. Has he actually attempted to adhere to his alleged principles? Nope! Will I let it rest? On principle, absolutely not! I refuse to allow media institutions to rot without talking about the smell. I am not ethically impotent.

Principles aside, as a fellow human, I know what it feels like to be targeted by a mob in my professional and academic life. I know what it is like for people to intentionally misinterpret and then misrepresent what I say, then use that misrepresentation and their social ties to exclude me from opportunities and groups. I went to girls’ schools all my life up until university. It did not get better at university or law school, mostly because I am not the kind of person who can see wrong things happening and just leave it be. These are not experiences I would wish upon my worst enemy, not because it is insurmountable, but because it is an immense waste of time and resources. I feel driven to say or do something when I notice wrong, and my big mouth gets me into trouble with bureaucrats in love with corruption and the status quo. I could live with that.

The kind of professional thuggery that is overtaking our institutions is unseemly and counterproductive. This misuse of the media and the infusion of female-typical aggression into the professional sphere where merit ought to be supreme is unbecoming. The media is an institution which ought to be preserved for the benefit of all, and its undoing in a manner this juvenile, anti-intellectual and anti-human is disgraceful. This is why no good writers remain on staff locally, why the editing skills are atrocious, and why our local intellectual life will continue to be sub-par. The same anti-intellectual forces that have tried to silence Salman Rushdie, that have killed Theo Van Gogh, that have made Ayaan Hirsi Ali’s security detail necessary, that have tried to get Bruce Gilley to stop asking questions and sharing heterodox ideas, and that have made V.S. Naipaul a local pariah are the ones which are conspiring to undo Kevin. This needs to stop before it is too late.

You may support Kevin by clicking this link and purchasing his books on Amazon. He writes really well, and he thinks!

Sion’s Handicap

Well…it has been about one day since Trini Facebook was broken and now, it is nursing its wounds. In a viral post (screenshot below), one member of the red man association expressed frustration with the single mothers allegedly in his inbox. He had had enough and the day of reckoning was upon the beggars and their handicaps! Although I am of the view that too much has been said through comments and reposts, and although the original post has since been removed, I have a nagging desire to give my two cents on the matter. This is, after all, a blog about law, economics and Caribbean culture. And, this is culture! Besides, what else am I supposed to do in this lockdown?

To get it out of the way, it is objectively true that single mothers are at a disadvantage on the dating and marriage market. Men generally do not want to raise other men’s children. Hell, some men *cough black men cough* don’t even want to raise their own children. Don’t shoot the messenger because she’s having a bit of fun speaking the truth! That’s a discussion for another day and it is what it is. Bottom line is, the core idea of the post is true and Stevie Wonder could see that…

Nevertheless, I do take issue with the delivery. You see, there is a certain level of elegance that I expect of supposedly decent folk while they are in public, and this fell way below that standard. You can be right and be an a-hole (he accurately described himself as such), or you can be right while maintaining tact. As someone prone to bluntness who has had to rein it in to maintain healthier human interactions, I would know. Using the word handicap to describe a prospective mate’s children can be technically correct, but it is bound to leave a bad taste in people’s mouths. He was at liberty to make his statement, but I’m not at all surprised by people’s reactions. Some things are better if kept in one’s head instead of letting them roll off one’s tongue.

Nothing prevented the poster from exercising his agency in dating privately, but he made his PSA on Facebook…publicly…and THAT is where I think the juicy point can be made. Why did he do this? Was he really so frustrated that he had to? Were there so many unsavoury women in his inbox that making a public statement was rendered necessary? I think not and I must scrutinize the post!

The allegation was that there were “all these baby mommas” in his inbox. I find this improbable. On average, men do the asking and not women. Single mothers also tend to have a lot on their plates given that they have whole other humans for whom they are responsible. That many within this cohort had the time to be in his inbox seems highly unlikely to me. It may be true, but I find it difficult to believe.

The second allegation was that they were “demanding things which single, childless women do not demand”. I’m not sure whom he has been dealing with, but most women would not ask for things from men unless they have had some encouragement from those men. Perhaps I am mistaken, but I don’t know one woman who would do this without there first being some sort of rapport between herself and the man, and without gauging the probable outcome of making such a request and concluding that more likely than not, it would be positive.

Long story short, I think he made the post to get attention. He likely was trying to make it seem like he was in high demand so that some woman whom he was interested in would consider him a better prospect.

Well…attention he got! Single mothers (and some others) swarmed in to scold him! One does not just pelt a jep’s nest! Many, quite ironically, proved his point by not being aware that they were at a dating disadvantage… But, people were also noting his arrogance. I felt for him, but was VERY entertained, especially since the post had been shared early yesterday by a friend, and I paid it no mind. I took a nap and woke up to memes! Someone needs to apologise to Mouttxt on behalf of Trinbago!

The part of the original post which I found most fascinating, however, was “you are coming to me as a beggar, not a chooser”. It reeked of so much condescension that it made me want to investigate further. Then, I found the gem below…

In his experience, women around his age (in their late 20s) are not interested in him. He also finds that older women with children, and younger women with no emotional intelligence are the ones available to him. The former expect him to be step-daddy from the jump. The latter cannot offer him the support he needs.

I was curious about whether this point on interest/availability was universally true since people tend to date, mate and marry within their age brackets, give or take four to five years in either direction. On average, women prefer men slightly older than them, who have some resources available, but not older by much. Naturally, I asked some (about 20) men, either in their late 20s or older now, but young enough to remember. It was comprised of mostly Trinis of various ethnicities and one white Brit. This was maccoing, not science, and I was that bored, so forgive me!

Only three of the men said that in their late twenties/early thirties, women their age weren’t interested in them. One admitted it was because he had no money. One said that the only woman around his age whom he had dated had a child, but that he mostly had younger women available. I know he also has no money (but he did not say that, so you didn’t hear it from me). The third said that he found that it was mostly slightly older Indian women whom were available, but he never took the bait. His now ex wife is a slightly younger Indian woman who was 28 when they married. He was 31 at that time.

The other Trinis said that younger women and women around their age were available and interested, and that none of the women were single mothers. The Brit said all ages were available and expressed interest, and none with children.

As is typical of women, I will jump to a conclusion. It’s more of a hypothesis than a conclusion, but after reading the posts I’ve shared together, and after browsing the poster’s public posts, I have a theory. Maybe it is not the children of single mothers that are the his primary handicap!

He seems to view himself as some sort of prize. To be fair, successful, childless black men are quite scarce, so that may be adding to his ego…but it takes some audacity to make a whole public facebook post expressing contempt for a cohort of women instead of simply exercising one’s agency and not dating them.

My hunch is that it is a combination of his arrogant personality, proclivity for emotional, attention-seeking, self-indulgent and self-aggrandizing facebook posts (which is feminine) and his overestimation of his own value that causes women within his age bracket to avoid him. I am childless and within his age bracket. I would avoid him like people avoid stopping on the Beetham stretch.

I think that any single mothers in his inbox requesting things are there on invitation, because it is not likely that women are chasing a man, and it is especially unlikely that they are requesting things from him unprovoked. I wait to be corrected.

I would like to thank the poster for bringing some much needed stimulation to an otherwise humdrum lockdown period. Yesterday would have been just another June Tuesday had he not offered himself as tribute. Instead, he gave me something to pretend to analyse. For that I am grateful. He’s at least good for one thing… Laughs! I laughed heartily.

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.

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.
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.
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.

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.

Why I will not be supporting Nikoli Edwards and the Progressive Party

With the exception of the years 1986-1991, two parties have been at the helm of Trinidad and Tobago’s politics. Red and yellow have filled our Parliament houses so much that their very presence seems immutable to most. So, one can imagine the stir when Nikoli Edwards registered his Progressive Party and confirmed that it was a contender for the upcoming national general elections. Nikoli, a 27-year-old man from San Fernando with a history in the civil service and a stint as an independent senator under his belt, declared that Trinidad and Tobago was at a critical point in its history and that his new party was the light that citizens have been asking for. Is it, though? In addition to the knight-in-shining-armour rhetoric, which while seductive, is extremely ambitious, I do not think that what the Progressives offer is what Trinidad and Tobago needs or what I would want to consume. Below, I outline the reasons why I do not think so.

As a member of the curious club, armed with smartphone and, dare I say, hope, I crafted a probing Instagram message on the party’s philosophical underpinnings, vision and mission and hit send. In response, I was told to wait for the June launch for clarification…so I did…and I waited some more…and then it happened. I was left with more questions than answers. In the interest of fairness, I sought Nikoli’s interviews post-launch so that I would not misrepresent his position. It was then that I happened upon this gem. It is the most extensive I have seen him get to date, which is not exactly a compliment.

The characteristic vagueness with which Nikoli speaks is both telling and exhausting. It shows me that he has no concrete ideas or mission or even opinions. That is scary. I mean, when a man can answer the question “Where and what is your manifesto?” with “How about I ask you what you would like to see in a manifesto?” a year before elections, and AFTER launching a whole political party and promising the moon and stars, it becomes clear that he is putting the cart before the horse. His vocabulary is splendid and his eloquence, notable. These are a testament to his communication studies degree, which, if I had to guess, would have first class honours attached. But what good is an eloquent speech about nothing in particular? I have grown weary of waiting for a meaningful response to anything I ask and have concluded that the reason for this vagueness is ignorance. I refuse to be led by a blind man, even if he has really cool hair. That highlights my first issue.

My second issue with Nikoli and his Progressive Party overlaps with the first. He does not seem to have a grasp of effective policy. The meaning of “policy” is admittedly elusive, but there are certain things for which I demand exceptional evidence. One of those things is a policy on minimum wage, which I think does more harm than good to an economy. In his discussion with Let’s Talk About It podcast’s Jahleel Castagne, Nikoli, had much to say about Prestige Holdings Limited’s choice to advertise job vacancies in Spanish upon the influx of Venezuelan nationals to our shores. Of particular interest was his suggestion that pressure by the populace to raise the minimum wage was a viable solution to the apparent problem of persons not being able to raise a family on a KFC salary. The alarm bells in my head went off.

According to this study by Meer and West, minimum wages reduce employment (i.e. increase unemployment) over time in a dynamic manner, especially through a reduction in job growth. This holds even when questioning the validity of the traditional demand and supply model. There are arguments made for and against the validity of this traditional methodology which suggests more immediate changes in employment statistics when the minimum wage is increased, though most are for it. A study by Strobl and Walsh entitled “Minimum Wage and Compliance: The Case of Trinidad and Tobago” showed that the introduction of the minimum wage in Trinidad and Tobago resulted in a reduction in employment for low wage earners and an increase in the use of part time workers. This research has been cited by the Central Bank of Trinidad and Tobago in a 2013 working p aper by research economists Reshma Mahabir, Vishana Jagessar, Crystal Neptune and Delvin Cox. This article has links to some relevant studies on the impact of minimum wages on unemployment.

To Nikoli’s credit, he acknowledged that people must creep before they walk and shared his own experience working in a herbal shop and later, starting his own herbal soap business. But it is this exact fact that suggests that he is not competent to do the job for which he is asking citizens to hire him. Such a policy decision would directly contradict the reality of his early employment. Sure, it is well-intentioned and even radical (I scoff at the word) to suggest that citizens should stand up and demand a vague “better” in the face of low wages. But if an increase in minimum wages increases unemployment over time, and if, as is most likely the case, traditional methods turn out to be valid and their findings on increases in unemployment in the short term are accurate, then why would he even dare to suggest pressure for such an increase as a solution? Is that actually better? A low-paying job is better than unemployment and these minimum wage jobs offer quick upward mobility through the provision of invaluable working experience. There is no shame in honest work and there is definitely no shame in growth over time. Is it that he wishes that others do not have the opportunity to work their ways up? Does he wish to make starting on a career path more difficult by removing the lowest rung from which people are to boost themselves? His mention of the gender and youth policies, as well as his clear desire to expand the public service only cement my opinions on his failure to grasp what makes for effective policy. Were these even policies? What did the gender and youth policies achieve? Has he seen the public service?

My third issue with Nikoli and his Progressive Party is what I perceive to be his lack of regard for facts. In the interview above, he spoke about the existence of “multiple genders as opposed to male and female.” Biology and reality will make it clear that people are either male or female, with some genetic disorders accounting for intersex persons. Gender Dysphoria is a psychiatric disorder. You can be masculine, or feminine or androgynous in your gender and reflect this in your presentation. You cannot identify as whatever you want under the sun and be sane. That is called a delusion. I do not say this tongue in cheek. The politicising of gender and the invention of additional genders is an actual thing these days and in Canada, attempts have been made to mandate the use of invented pronouns and thus, limit free speech, all in the name of identity politics. I do not play that game and it will not do any good for Trinidad and Tobago to play it. A stable society requires an acknowledgement of basic facts like the existence of two genders.

On the less nefarious end of the ignorance-of-fact-spectrum, Nikoli stated with authority that in Trinidad and Tobago, you have to be at the age of majority (18) to access sexual education and sexual health treatment and resources without parental consent. A quick visit to the TTConnect website would show that this is not true. Further, minors can access information and consent to different medical procedures by meeting the threshold of the common law Gillick Competence test. The rationale of this test is that as a child develops, he or she becomes more independent and thus, is more competent to consent to certain things without parental input. Lord Fraser set out five guidelines in his judgment which are of particular relevance in this discussion, because the Gillick case was actually about sexual health education. He stated that (1) if a minor understands the nature of treatment/the advice given, (2) cannot be persuaded to inform his/her parents, (3) is likely to start or continue sexual intercourse without contraceptive treatment, (4) is likely to suffer physically and/or mentally if treatment is withheld and (5) the best interests of the child are taken into account, the need for parental consent shall be waived. So, Nikoli is either uninformed or intentionally sharing false information. Either situation should inform one’s decision to support him and his party, as it is acceptable to follow neither the ignorant nor the dishonest…especially when a simple Google search clarifies the matter. Can a man be trusted to manage an economy if he cannot manage a basic Google search? Have we not had too many Prime Ministers who bray and talk off the top of their heads on matters of public importance? I think we have.

My fourth issue is simple. Although no clear policy positions have been given by Nikoli, his Progressive Party’s website states that it is Centre Left on politics. What that seems to mean is that the party’s aim is to utilize the existing framework to improve social justice. This would be done through a mixed economy, an extensive social security system, increased regulation, trade union support, progressive taxation, wealth taxes and Keynesian economics. I subscribe to libertarian politics. I lean right. I love capitalism. I think the existing framework is horrible and that the government is too big. I hate regulation because it stymies economic growth and innovation. Trade unions are the bane of my existence and I think that they are a cartel…only, in the words of my friend Kevin, “Cartels actually provide services, so there is a difference!” I hate income taxes because they penalise citizens for being productive. I am definitely NOT a proponent of Keynesian economics. Government spending does nothing more than mislead us into overestimating a stagnant or recessive economy. My politics do not line up with centre-left politics. I like freedom and responsibility and while I do not have an issue with basic social security, I am neither naïve enough to think that it cannot be exploited nor bold enough to pretend that the public funding, monitoring, staffing and auditing of an extensive social safety net, with its high maintenance costs and associated bureaucracy, which inevitably reduce the amount of money allocated to help the people we want to help, is better than private funding and private charity. The quick response to last year’s extensive flooding is proof of the effectiveness of private actions by good and charitable citizens. The Progressives and I fundamentally disagree on what the role of government should be and to me, they are more of the same-old with a fresh, new face.

My fifth and final issue with Nikoli and his Progressive Party happens to be my primary one. His blatant use of identity politics is unbecoming to anyone with a modicum of conscience or maturity. I have already mentioned his pandering to the gender crowd, so it is clear to me that he is willing to play that game. I need not reiterate that aspect of things. The brand of identity politics that he seems to be milking most, however, is that of “youth”. While it is a fact that Nikoli was the youngest person to be appointed to the Senate, he mentions youth like clockwork every time he speaks as if it is some kind of virtue. Youth is as much a virtue as old age and the infusion of us-vs-them talk on age lines is unfortunate…and presumptuous…and sly. I do not see how the number of times one has orbited the sun affects the validity or effectiveness of one’s policies. Of course, if one has not actually outlined any policies, it becomes necessary to find a selling point. I get the sense that his sole aim is to become Trinidad and Tobago’s youngest Prime Minister and that he will stop at nothing to get there.

I am open to proposals and ideas and statistics. I am a sucker for a good scientific study and policies based on empirics. Empirics are sexy. Empirics are also absent from all of his statements and in their stead, we have received buzzwords, good intentions, doe-eyed naivety and shapeless, utopian assertions, which we are apparently supposed to excuse because he is “young” and aspires to “develop Trinidad to its fullest potential”. What exactly he means by that remains unspecified. “Give young blood a chance!” is a statement I have heard too many times this week as if the Progressive Party is owed a chance solely because its leader has not yet hit the big 30.

Politics isn’t musical chairs. The economy isn’t a UWI exam with supplemental exams in Semester 3 if you fail. This is not a Guild Election. We are discussing whether we should put billions of dollars into a government’s hands and trust them with managing it. We are discussing whether we can trust someone to do a job which will facilitate individuals in this country bettering their lives and the lives of their families and loved ones, through autonomy, responsible action, hard work and dedication. None of the previous parties meet the threshold and, in my view, neither does Nikoli’s. Trinidad and Tobago doesn’t need “leadership”. Political pundits have continually told us that we need “leadership”. Smooth-talking intellectuals with no grasp of the reality of our day-to-day lives have told us that they are the answer more times than we can count. What we need is freedom to pursue our best and a government that understands that it is neither parent nor nanny. The Progressive Party is rife with paternalism, is willing to pander to social hijackers like gender politicians and is void of direction. It is for those reasons that I shall not be lending my support to them.