Sedition Law Judgment, Dog Whistles and Hate Speech

Elma Francois - Political Labour Leader

"I don't know that my speeches create disaffection, I know that my speeches create a fire in the minds of the people so as to change the conditions which now exist."  - Elma Francois.
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In February 1938, Elma Francois, a woman organiser of the workers and poor, was put on trial for sedition because of her speeches to the workers of Port of Spain on the Piccadilly Greens. She was one of several organisers of the Negro Welfare Cultural and Social Association (NWCSA) charged with sedition, the only woman. She defended herself and was acquitted by the jury. The men were not as lucky.
On Monday, January 13, in a most significant judgment section 4 of the Sedition Act under which Francois was charged along with section 3, both creating criminal offences out of nebulous seditions intent, were struck down in the High Court.
These provisions criminalizing dissent, were declared to be “hopelessly vague” and cannot “qualify as law” violating the “principle of legal certainty” particularly when these sections are supposed to define offences and can lead to loss of freedom consequently.
The Court also said that since these sections do not “qualify as law” and therefore couldn’t be regarded as “saved law” continuing across the colonial and Independence eras.
Further, the Court ruled that the offending sections “infringe the right of the individual” to “freedom of thought and expression” and therefor offend the Constitution and particularly sections 1 and 2 of the highest law of our Republic.
On the same day, the Attorney General announced his decision to appeal the judgment because it was “a dangerous development” with implications for many other laws originating in the colonial era of imperial monarchy.
Which old laws? He suggested “every saved law …like inland revenue law” and “law that allows capital punishment”.
This appears quite alarmist. Those laws that, like the Sedition Act, create criminal offences, particularly homicide, are not “hopelessly vague” and void for uncertainty. To suggest that they are in the same state as sections 3 and 4 of the Sedition Act is a far stretch.
The AG alarmingly referred to the 1990 coup attempt to suggest that striking those sections the Sedition Act was somehow offering protection to anyone engaging in or threatening violence.
There is plenty law of Treason, Terrorism, Riot etc which adequately deal with situations of armed insurrections., So, where is the nexus between what the AG suggests and the ruling on the Sedition Act.
Further, the Sedition Act as introduced on 9 April 1920, was clearly a reaction by the colonial power to the 1919 strikes and protests of the dock, sugar and other workers against their oppressive conditions.
Look at the original section 3 (1)(a) which defines a seditious intention as one to “bring into hatred or contempt, or to excite disaffection against the person of His Majesty…”. Against his majesty residing in the comfort of his palaces on the other side of the Atlantic Ocean? Really!!
Isn’t that archaic? Or are we to equate some officeholder in our modern democratic Republic with the person of his or her majesty?
Contrast that with the language of section 7 of the same law that requires the AG (now the DPP) to satisfy a Court that a seditious publication should be banned if its publication “would be likely to lead to unlawful violence, ..”. The same words used in the 1920 and current versions of the law and set a different and clear (not vague) threshold for determining the seditious nature of the material complained about.
Only last September, the Prime Minister declared that if the Sedition Act went, we would need law which prevent the exploitation of “fault lines and fractures whether it is ethnic, religious, racial or otherwise” in our society. He declared that he is “open to amending the Sedition Act”. And, he invited wide participation in a national discussion on what should amend or replace that Act.
Why now is his AG now acting as though the Court has done more than amend it by striking out only 2 sections which did not qualify as good criminal law?
In expressing his views, the AG “opened the ay for the kind of scurrilous accusations being levelled against Justice Seepersad, especially by political loyalists and political hacks on social media” as one newspaper editorial put it the next day.
In fact, it was not just on social media. Within hours of the AG’s dog-whistle, a declared PNM radio talk-show host led a chorus of loyalists in suggesting that the Judge was biased because he previously praised Sat Maharaj’s contribution to education. Even though the AG and his lawyers never raised that issue of bias against the Judge.
The callers went further to suggest that the Judge was an Opposition sympathizer and even questioned his religious background.
It is shameful that a political party whose leader warned against those who might act in a “way to allow those fault lines to become fractures” were now in a most despicable fashion seeking to bring into hatred or contempt or excite disaffection against a Judicial Officer merely because he ruled against parts of a law that sought to silence dissent.
Not since the days of the trials of Butler, Barrette, Christina King, Elma Francois and others in the 1930’s and 40’s has there been a successful prosecution using those “vague, uncertain and therefore illegal” sections of the Sedition Act.
 
Clyde Weatherhead
A Citizen Fighting for the
Democratic Renewal of our
Society and Empowerment of
Our People.
21 January 2020

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