Peter Knox KC and Robert Strang Instructed by BDB Pitmans LLP (London) for the Appellant
Sir Rabinder Singh:
Introduction
The main issue in this appeal is whether the Sedition Act 1920 (“the Sedition Act” or “the Act”), which is a pre-independence law and was originally enacted as an Ordinance, is consistent with the 1976 Constitution of the Republic of Trinidad and Tobago. The High Court held that it is not but the Court of Appeal allowed the respondent’s appeal and held that it is.
The facts
The first appellant is Vijay Maharaj, who pursues this appeal (by order of Seepersad J dated 13 January 2020) on behalf of the estate of his father, Satnarayan Maharaj (“Mr Maharaj”). The second appellant is a company incorporated under the law of Trinidad and Tobago, operating from the island of Trinidad. Mr Maharaj was the founder and managing director of the second appellant (Central Broadcasting Services Ltd).
Mr Maharaj was a well-known person in public life, who hosted a “call-in” talk show called “The Maha Sabha Strikes Back”. This talk show was broadcast by the second appellant and consisted of Mr Maharaj offering commentary, with callers expressing opinions on various issues affecting society in Trinidad and Tobago. Mr Maharaj was viewed by some as a controversial figure. He often used his talk show to criticise the Government and to express strong, and at times provocative, statements on matters of public interest.
On 9 April 2019 Mr Maharaj made certain statements on his talk show which attracted the censure of the Telecommunications Authority of Trinidad and Tobago. The statements were subsequently transcribed as follows:
“And now let’s get down to Tobago ah little bit and what’s happening there. Nothing going correct in Tobago. They lazy, six out ah ten of them working for the Tobago House of Assembly, getting money from Port of Spain. They doh want wok and when they get a job. They go half pass nine and ten o’clock they go for tea, breakfast. The rest of them able bodied men they doh wah no wok ah tall. Run Crab Race, run Goat Race and go on the beach hunting for white meat. Yuh see ah white girl dey. They rape she, they take away all she camera and everything. This record inno. This is what Tobago is all about but anything they want, they going to get. So now we have a lot of ferries ahready. Our Prime Minister is renting a ferry to take Tobagonians from Scarborough bring them to Port of Spain so they could buy market in Port of Spain market. They ain’t growing nothing dey, they coming to make market inno. From Tobago we paying for them to come and pay market. And you know how much our Prime Minister paying our money? Every day two hundred and sixty three thousand five hundred and eighty dollars a day. For this boat to bring them lazy people from Scarborough to come and make market in Port of Spain and take them back. They wouldn’t grow nothing they. They wouldn’t grow nothing, when they ketch they crab is to run race and when they mind they goat, is to run race. They come in Port of Spain, growing nothing. We paying, we the tax payers in Trinidad, we paying. Whatever Tobago wants, Tobago gets and I am saying, we should they change the name of this country? We are no longer Trinidad and Tobago, we are Tobago and Trinidad. We are subservient to them, right. And this big mouth man, rasta man called Attorney General Fitzgerald Hinds, when people make statements, he like to chastise them, insult them. A lady made a statement. Hadad said ‘the government mix messaging of the situation in Tobago was not helping the sea bridge’ because the government was giving different messages. The response of Fitzgerald Hinds is that, ‘if the woman normal’. Once you disagree with them, you are not normal. Once you point out the truth you are not normal. Well I say Hinds go and spend time seeing about your hair because it take you two days to plait them. The woman is normal and I believe she is more normal than you. That is why the fella in Sealots kick water on you, right.”
As a consequence the Telecommunications Authority issued a warning to the second appellant on 17 April 2019, saying that the statements could be seen as “divisive and inciteful”.
On 18 April 2019 police officers executed a search warrant at the second appellant’s premises.
By a letter dated 28 April 2019 the Director of Legal Services of the Trinidad and Tobago Police Service, Christian Chandler, wrote to the second appellant’s lawyers, saying that the police officers who had effected the search had taken a recording and had a legitimate search warrant pursuant to section 13 of the Sedition Act. A copy of the search warrant was, however, not provided.
Judicial review proceedings were then commenced seeking a copy of the search warrant. The High Court declared that the failure to provide it was unlawful and ordered the Commissioner of Police to provide a copy and to make the original available for inspection within seven days: see Central Broadcasting Services Ltd v Commissioner of Police (CV 19 – 02135).
As explained in his affidavits, Mr Maharaj feared that he would be charged, prosecuted and convicted of a criminal offence under the Sedition Act. No charges were in fact laid against either Mr Maharaj or the second appellant, whether under the Sedition Act or otherwise.
On 31 May 2019 Mr Maharaj and the second appellant filed an originating motion challenging the constitutionality of sections 3, 4 and 13 of the Sedition Act.
Subsequently Mr Maharaj died. On 29 November 2019 the first appellant filed an application to be substituted for and on behalf of Mr Maharaj’s estate. This was granted by Seepersad J on 13 January 2020. The respondent’s appeal against that order was dismissed by the Court of Appeal and that issue is no longer a live one.
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