“[…] In a different state of public feeling, learned senior counsel’s words might be innocent and may not tend to disturb the peace and may be open to just censure. Not in the here and now. There are times when a spark will explode a powder magazine…”
The following letter to the editor on statements by Leader of the Opposition Kamla Persad-Bissessar was submitted to Wired868 by Ula Nathai-Lutchman, an international criminal lawyer:
The opposition leader’s warning about the frustration people are facing, stating ‘the seeds of civil unrest are being planted and watered’ and ‘we cannot have a 1990 repeat’ is a breathtakingly irresponsible and foolish comment that could reasonably provoke violence.
Moreso, given that she is a learned senior counsel and former prime minster and ought to know that it is itself a potential statement to provoke volatile divisions in an acutely fragile nation under a state of emergency.
The words in her statement relate to acts akin to an offence of incitement at common law, and is a particular manifestation of the offence of inciting dissatisfaction against the government. I doubt that was or is her intention—to incite the people to violence or to create a public disturbance or disorder.
Considering context and time, social/cultural/racial issues, it is worth remembering that sections 3 and 4 of the Sedition Act remain on the statute books and are couched in terms which are adequate to provide fair notice to individuals of the conduct which is to be regarded as criminal.
In a different state of public feeling, learned senior counsel’s words might be innocent and may not tend to disturb the peace and may be open to just censure. Not in the here and now. There are times when a spark will explode a powder magazine—the effect of language may be very different at one time from what it would be at another. This point is vividly illustrated by the case of Sharky (1949) which rebuts an intention to actually incite anyone:
“Intention—which is a matter of inference from words or conduct—is not by any means necessarily to be judged upon the face value of words used. The earnest advice of a pretendedly disinterested bystander to an excited crowd in possession of a victim ‘don’t duck him in the horse trough!’ can be interpreted, quite reasonably in some circumstances, as an incitement to the action which the speaker professes to discourage.”
Covid has supercharged all of the other risks and vulnerabilities that already existed in the country. It is a government under great strain and failings. Even by those shortcomings, rightly accepted by the prime minister, now is not the time to pander to those whom she considers supporters and indulge in ‘opposition for opposition’s sake’.
The whole world is being ripped apart by the pandemic. Covid-19 has had catastrophic consequences for people’s health, incomes and debt. Surely the former PM ought to be acutely sensitive that the citizens have very little room financially or emotionally to cope with another crisis.
Rather than author a public catastrophe all on her own, use your platform to inspire a useful purpose in getting the government to do its job better. This is what the opposition should do in a crisis. The public expects their elected leaders to work together in the face of ‘this unprecedented pandemic’.