Attorney General of Trinidad and Tobago v Vijay Maharaj Substituted on behalf of the Estate of Satnarayan Maharaj for Satnarayan Maharaj and another

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this appeal is whether the Sedition Act 1920 (“the Sedition Act” or “the Act”), which is a pre-independence law and was originally enacted as an Ordinance, is consistent with the 1976 Constitution of the Republic of Trinidad and Tobago.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 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.

Trinidad and Tobago became independent in 1962. The Sedition Act was enacted as an Ordinance on 9 April 1920 and has been amended by Acts No. 172 of 1962, No. 8 of 1962, No. 36 of 1971 (passed by a special majority in accordance with the provisions of section 5(2) of the 1962 Constitution) and No. 136 of 1976.

The long title of the Sedition Act describes it as an “Act to provide for the punishment of seditious acts and seditious libel, to facilitate the suppression of seditious publications, and to provide for the temporary suspension of newspapers containing seditious matter”.

Section 3 of the Sedition Act provides as follows:

“(1) A seditious intention is an intention—

• (a) to bring into hatred or contempt, or to excite disaffection against the Government or the Constitution as by law established or the House of Representatives or the Senate or the administration of justice;

• (b) to excite any person to attempt, otherwise than by lawful means, to procure the alteration of any matter in the State by law established;

• (c) to raise discontent or disaffection amongst inhabitants of Trinidad and Tobago;

• (d) to engender or promote—

  • (i) feelings of ill-will or hostility between one or more sections of the community on the one hand and any other section or sections of the community on the other hand; or

  • (ii) feelings of ill-will towards, hostility to or contempt for any class of inhabitants of Trinidad and Tobago distinguished by race, colour, religion, profession, calling or employment; or

• (e) to advocate or promote, with intent to destroy in whole or in part any identifiable group, the commission of any of the following acts, namely:

  • (i) killing members of the group; or

  • (ii) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.

(2) But an act, speech, statement or publication is not seditious by reason only that it intends to show that the Government has been misled or mistaken in its measures, or to point out errors or defects in the Government or Constitution as by law established, with a view to their reformation, or to excite persons to attempt by lawful means the alteration of any matter in the State by law established, or to point out, with a view to their removal by lawful means, matters which are producing, or have a tendency to produce—

• (a) feelings of ill-will, hostility or contempt between different sections of the community; or

• (b) feelings of ill-will, hostility or contempt between different classes of the inhabitants of Trinidad and Tobago distinguished by race, colour, religion, profession, calling or employment.

(3) In determining whether the intention with which any act was done, any words were spoken or communicated, or any document was published, was or was not sedition, every person shall be deemed to intend the consequences which would naturally follow from his conduct at the time and under the circumstances in which he so conducted himself.”

Section 4(1) of the Act provides that a person is guilty of an offence who: (a) does or attempts to do, or makes any preparation to do, or conspires with any person to do, any act with a seditious intention; (b) communicates any statement having a seditious intention; (c) publishes, sells, offers for sale or distributes any seditious publication; and (d) with a view to it being published prints, writes, composes, makes, reproduces, imports or has in his possession, custody, power or control any seditious publication. Section 4(2) provides...