By Dr Tye Salandy
September 22, 2019
As I mentioned in the first article in this three part series, the Sedition Act is not archaic or outdated, but it was an extremely bad law in the first place given its deliberate vagueness, its colonial intentions and the way that it was weaponized against those who resisted the brutal British empire. Critiquing the bill using words such as outdated and archaic gives the impression that it once was a good law, and it is just the passage of time that makes it problematic in the present time. Nothing could be further from the truth, as from its creation in Trinidad and Tobago, the sedition law was a tool of the colonial elite that was used against the public interest.
Concerns about Lawlessness and the Public Interest
Concerns have been made in the public domain that removing the sedition bill will not be in the public interest as doing so will encourage lawlessness and irresponsible speech. These concerns do not fit historically with the intent of the sedition bill which was never about protecting the public interest. Even so, there are already other laws that deal with threatening, abusive and insulting language, such as section 50 of the Summary Offences Act. If these are seen to be inadequate, then they could be strengthened, or better yet a new bill written. We do have deep problems of divisions in the country, and one only has to listen to talk shows or political speeches by major parties and their supporters to get a sense of the contempt directed at various communities. However, this is not going to be solved by the Sedition Act. All the years we have had the Sedition Act on our books it has never stopped political speakers, commentators, or radio talk show hosts from spewing hate and ignorance. Sometimes this is coded, and sometimes not, but the Sedition Act has proven to be impotent in holding persons to account for their words. More on this in the next installment of this series.
Several countries around the world have repealed their sedition laws including Great Britain, New Zealand, Ghana, Kenya and Uganda. And herein lies the irony. While former colonies have mostly maintained a range of colonial laws (including the sedition law), Britain, the biggest colonizer, has moved away from a lot of these laws, even to the extent of acknowledging that these laws cannot be a part of a modern democratic society.
Following a recommendation in 1977 Britain abolished their sedition law in 2009. According to then Parliamentary Under Secretary of State at the Ministry of Justice, Claire Ward, “Sedition and seditious and defamatory libel are… now seen as the touchstone of democracy, and the ability of individuals to criticise the state is crucial to maintaining freedom”. She further observed that “The existence of these obsolete offences in this country had been used by other countries as justification for the retention of similar laws which have been actively used to suppress political dissent and restrict press freedom.
Amending versus Repealing the Sedition Act
Some commentators argue that the sedition act should be amended, rather than repealed. I totally disagree, and my disagreement is rooted in why the sedition law was first created (both in England and in T&T), the way that the law has been weaponized in the colonial and post-independent periods and the overall historical baggage of the law. Sedition Laws are rooted in the 1275 Statute of Westminister in England that outlawed “any false news or tales whereby discord or occasion of discord or slander may grow between the king and his people or the great men of the realm.” Over time, this evolved into the 1661 Act in the British Parliament that outlawed speech and publications that criticized or challenged the divine right of the monarchy EVEN WHEN IT WAS TRUE. As such, as several commentators have observed, the very nature of sedition laws relate to a monarchy and not a republic such as ours. Therefore, it should be totally repealed.
Enforcing the Law When the Law Can Be An Ass
One of the responses by government officials is that the Sedition Act is the law, and the law will be enforced. This position is deeply problematic because it does not consider that we have a long history of violent and abusive policies that were once lawful. This is particularly so within the Caribbean that has been so rooted in brutal European empires which maintained their dominance through the law. Slavery was once legal, and so was discrimination against various races, religions and groups that did not fit colonial expectations of being. The legacy of our legal system rooted in abusive social relations lives on in a number of nonsensical laws.
Section 71 of the Summary Offences Act outlaws kite flying in POS or any other borough with a couple of exceptions. Section 105 bars any book, circular, pamphlet, handbill, poster or any other publication that does not have the name and address of printer and publisher. Remember when Inshan Ishmel, who was then being very vocal against the government, was arrested and charged for this in 2007? Section 64 (a) forbids any vehicle being cleaned, washed or repaired on a street, while Section 64 (f) outlaws the singing of “any profane or obscene song or ballad”. Section 45 (h) outlaws anyone pretending or professing to tell fortunes. Section 45 (d): any person who, without leave of the owner or occupier, affixes any placard or notice upon any building, wall, pillar, post, or fence, or otherwise defaces the same. How many political parties routinely flout the law around election time with a ton of election flyers and posters stuck in places without permission?
Are Aspects of Carnival Illegal?
According to Section 46 (g) of the Criminal Offences Act, “Any person who offers for sale or distribution or who exhibits for public view any profane, indecent, or obscene paper, print, drawing, painting or representation may be deemed a rogue and a vagabond and liable to imprisonment for two years.” Act 51 of the Summary Offences Act prohibits “indecency” in public places specifically mentioning anyone who (a) is indecently attired; (b) performs any lewd or suggestive dancing or actions; (c) in any play, song, ballad or speech, uses language, or makes use of any recording, which is profane, indecent or obscene, or which is insulting to any individual or section of the community whether referred to by name or otherwise; (d) acts in a manner calculated to hold up to public ridicule or contempt any individual or section of the community.
If police officers enforce the section against “lewd or suggestive dancing” it could easily give new meaning to the term “wining criminal”. If the two above sections of the law in general were to be enforced then it would disrupt carnival fetes, carnival, artistic exhibitions, political rallies, radio talks shows, the Sunday Punch newspaper, cable television, music videos, double entendre calypsos, the sale of sex toys and even the sexualised electronic communication that sometimes occurs between two lovers. At any time, persons can be arrested for the above with the argument being that it is against the law. My point is not that people should be allowed to do anything they want, but the standards and laws we have are problematic especially as they never came from an inclusive consideration of what laws were necessary for a healthy society. Instead, the laws were created from planter class insecurities and bias, particularly as they felt threatened by the cultural, sexual and religious expressions of the African and Indian working class.
Rogues, Vagabonds and Colonial Laws
If all the laws on our books are to be enforced it would make all of us “rogues and vagabonds”. For example, social commentator David Muhammad recently brought up a section of the law (Chapter 48:51 (8) of the Motor Vehicles Act) that mandates owners of motor vehicle to notify the commissioner of transport in writing if they are leaving the country. How many people do this?
The fact that often such laws may not be generally enforced should not make citizens any more comfortable. When there are personal or political agendas or even social or religious biases, the law can be activated in ways that infringe human rights. I remember when the local Rasta organization All Mansions of Rastafari held a rally to address marijuana laws, an attempt was made to stop the rally by relying on the Summary Offences Act 109(6) which forbids foreign speakers from speaking at a public gathering without a permit.
In the history of Trinidad and Tobago the formation of laws has never been separate from the agendas of the elite class who were intent on holding onto political, economic and cultural control. Thus, many of the laws that we have had were overly concerned with criminalizing the culture, behavior and institutions of the working class, especially ethnic groups such as Africans. Even Indians, whose culture was seen as legitimate though inferior to the dominant creolized, Eurocentric and Christian one, did not escape the legislative attention of colonial authorities as shown in early anti-marijuana laws and the attempts to outlaw firepass ceremonies.
There is an urgent need not only to revisit the Sedition Act but also other laws. The Summary Offences Act especially is very problematic. What makes our many backward colonial laws even worse is that the laws are not applied equally. There are deep biases at almost all stages of the justice system, from who is targeted and arrested by law enforcement to how persons are treated and sentenced by the judicial system (etc). This is not new as David Trotman in his book Crime in Trinidad: Conflict and Control in a Plantation Society explains that in colonial society, persons’ chances before the court depended on their race, colour and class, so much so that if a defendant was from a particular class or race he/she was assumed guilty until his/her innocence could be proven. It would be naïve to think that biases exist in other areas and institutions of the society and not in the justice system.
The next article on this issue will focus on the way forward, and some of the challenges in creating just and sensible laws.