The Jefferson Cumberbatch Column – Fear of the Sedition Act
‘They say a young minister was found, in a hotel with a call girl in town,
But I ent singing ’bout that, ah ‘fraid the Sedition Act…”
“They say [that] government pass the Divorce Bill, so that Eric could get his own at will
But I keeping out of that, ah ‘fraid the Sedition Act…” –Chalkdust- Ah Fraid Karl 
A person is guilty of an offence who-
(b) communicates any statement having a seditious intention-Sedition Act 1920 [T&T]
My last two columns here treated severally two aspects of the tort of defamation. The first, some weeks ago, discussed the concept of the ordinary reasonable reader, that anthropomorphic conception of justice that is used to determine the legal meaning of a written imputation alleged to be defamatory, while the second, published just last week, dealt with the novel defence of triviality that is to be found in the Barbados Defamation Act only in the region.
While defamation is a constitutionally recognized qualification of the guarantee of freedom of expression, some other exceptions exist, whether by statute or common law. One such that recently arose for public discussion, at least in Trinidad & Tobago, was the democratic validity in modern times of a charge of sedition, given the nature of political discourse.
It appears that Mr Watson Duke, the head of the public sector workers’ organization in that country, was slapped with a charge of sedition under the Sedition Act 1920 (as subsequently amended). I am not privy as to the precise words of sedition allegedly used by Mr Duke but in part of the impugned speech he is reported to have stated: “We must be prepared to die, folks, You know why? This is your belief, this is your family, and I am sending the message clear, let Rowley [and] them know that the day they come for us in WASA, we are prepared to die and the morgue would be picking up people.”
According to the provisions of the Act, long-titled “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”, a seditious intention is defined as “an intention-
(a) to bring into hatred or contempt, or to excite disaffection against 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;
(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;
(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. [section 3(1)]
While in multi-ethnic Trinidad &Tobago, it is arguable that section 3 (1)(d) and (e) specifies conduct that ought reasonably to be prohibited, the preceding sub-sub-sections (a)-(c) appear rather to be the very raison d’etre of those political parties and other forces opposed to the policies of the incumbent governing administration, apart from the use of otherwise than lawful means of course.
It seems a stretch therefore to classify mere political opposition as sedition. Hence, perhaps, the limitation stipulated in section 3 (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 …
As with criminal libel, the laying of such a charge by the state at once interrogates its reasonable requirement and justification in modern democratic society. More so in Trinidad & Tobago where the Constitution expressly guarantees in section 4 (e) “the right to join political parties and to express political views”. Of course this right is not absolute and there also exists a savings law clause that ought to preserve the legal validity of the Act but an issue nevertheless remains as to the legitimacy of the use of the awesome state power to prosecute political speech not to one’s liking.
Also, similar to defamation, the intention of the publisher of the statement in question is irrelevant, Rather it is the natural reaction thereto that goes to determine whether a seditious intention existed.
Section 3 (3) reads-
“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 seditious, 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.”
Reaction to the charge has been seemingly mixed. My colleague, Professor Rose-Marie Antoine, Dean of the Faculty of Law at St Augustine, has expressed fear that the country’s misused sedition laws create uncertainty in T&T’s democratic society. She described the act as “archaic” and noted that although the act was amended in the late 1970s, there was a need for it to be re-examined once more.
For his part, the Honourable Prime Minister, Dr Keith Rowley has pooh-poohed the argument as to the Act’s vintage. According to him, “The biggest conversation in Trinidad and Tobago today is how old the Sedition Act is. And it’s time to get rid of it. Well, then, if that is how we approach it, we might as well go with the whole basket. Let’s get rid of the Trespass Act, that’s ‘kinda’ old too. Let’s get rid of the [A]ct for murder and crime. And while we’re at it, let’s get rid of the [A]ct which speaks to common assault, which dates way back to the days of King John and the Magna Carta.”
We look forward with interest to the eventual judicial resolution of this matter in general and of the various forensic arguments that will arise in particular. Is the Act still reasonably required and reasonably justifiable in 21st century Trinidad & Tobago? Or parts of it only? Is section 3(2) sufficiently exculpatory? Does the savings law clause foreclose any argument as to its constitutional validity? What is the true extent of the freedom guaranteed in section 4(e) of the Constitution? Film at 11, I suppose.