It is fundamental that citizens are entitled to understand and, if appropriate, criticise decisions made by the Government or public authorities; and also to be fully informed about the involvement and role played by the key decision-makers, whether Ministers or Cabinet appointees to Boards.
This fundamental right is confirmed in the decision of the Privy Council—delivered in May this year—in the case concerning the disclosure of two Petrotrin witness statements. It may be applied to other mysterious events.
In the current climate, the point must first be made that things said in exercising the undoubted right to criticise the decisions of public authorities are likely to ‘excite disaffection against Government’ or ‘raise discontent or disaffection amongst inhabitants of Trinidad and Tobago’. The phrases in quotes are two of the definitions of ‘seditious intention’ in the Sedition Act, which is currently a hot topic.
As a matter of common sense, such criticisms should fall within the limited protection provided in the Sedition Act for statements intended only to show that the Government has been misled or mistaken or to point out errors.
However, depending on how the criticisms are expressed—the more colourfully, the more likely the risk—an over-zealous interpretation of the Sedition Act might bring prosecution to the doorstep of the critical citizen.
It is readily acknowledged that the requirement of consent from the DPP to a prosecution is a safeguard against overzealousness. However, an assessment of a citizen’s intention when he made the critical and colourful statement has a significant subjective element, with an equally significant margin for bona fide differences in the making of the assessment as to whether a seditious intention was present. I have stressed the point that the bar for seditious intention is set far too low.
Nevertheless, I do not agree that the Sedition Act should be repealed because I support the prohibitions contained in it against engendering or promoting feelings of ill-will and hostility between different ‘classes of inhabitants distinguished by race, colour, religion or employment’.
What is needed is an urgent amendment of the Act to qualify seditious intention by adding a specific requirement that the prohibited acts and statements must be ones that urge forceful or violent action against the State, the Government or the Constitution.
The Australian model is helpful. It provides ‘good faith’ defences to charges of sedition. Some of those defences are similar to the protections contained in our Sedition Act but they all include ‘a good faith’ test.
They also include a specific protection for a person who ‘publishes in good faith a report or commentary about a matter of public interest’. And, very interestingly in our current context, protection for a person who ‘does anything in good faith in connection with an industrial dispute or an industrial matter’.
In a recent gathering to discuss the Sedition Act, a citizen disguised himself, mask and all, in order to make statements about the recently ‘cancelled’ contract between the Housing Development Corporation (HDC) and the Chinese construction company, Gezhouba Group International Engineering.
The Phantom, as he has been called, reportedly disguised himself for fear of being charged with sedition. I loved this piece of theatre precisely because it illustrates the thin line between inciting disaffection and robustly pursuing transparency and accountability—particularly when the Government’s response to concerns about what might be going on behind certain scenes is to shout ‘lies’.
I am not aware that contracts can be ‘cancelled’ just like that. We certainly need to know at a minimum whether any payments had already been made to Gezhouba and what, if anything, is the cost of the so-called cancellation.
Moreover, if the terms of the contract were so inappropriate as to warrant cancellation, who made it on behalf of the HDC and why?
By analogy to what the Privy Council said of Malcolm Jones, then Executive Chairman of Petrotrin, we need to know who was involved on the part of the HDC and the roles they played in the Gezhouba contract. This enables us—according to the Privy Council—‘if appropriate, to criticise or oppose the appointment of any of them to other roles within government’.