Attorney General of Trinidad and Tobago v Vijay Maharaj Substituted on behalf of the Estate of Satnarayan Maharaj for Satnarayan Maharaj and another (Trinidad and Tobago)

An existing law under a constitutional savings clause is identified by a factual inquiry: whether it had effect immediately before the Constitution commenced. The court does not assess its underlying quality or legal certainty for that purpose. A savings clause may protect pre-existing legislation from rights-based constitutional challenge, even where the legislation would otherwise conflict with protected rights. A constitutional provision declaring a state to be sovereign and democratic may impose substantive structural requirements, including representative government and separation of powers. It should not, however, be interpreted so broadly that it circumvents the carefully defined savings clause or creates an implied right of judicial review for freedom-of-expression challenges. The Board also indicated, obiter, that the principle of legality may require sedition legislation to be read as requiring an intention to incite violence or disorder.

The appellants challenged sections 3, 4 and 13 of the Sedition Act 1920 after police searched broadcasting premises following controversial comments made on a talk show. No prosecution or charge followed. The challenge alleged that sections 3 and 4 were vague, overbroad and inconsistent with the constitutional status of Trinidad and Tobago as a sovereign democratic state, and with constitutional rights to freedom of expression and related freedoms.

The High Court declared sections 3 and 4 invalid. The Court of Appeal allowed the Attorney General’s appeal, holding that the provisions were sufficiently certain when interpreted in context and that the constitutional savings clause protected them as existing law. The central questions before the Board were whether the provisions were existing laws protected by section 6 and whether they were nevertheless invalid under section 1 of the Constitution.

1. The appeal was dismissed. The Board delivered a single judgment. The Sedition Act 1920 was an existing law within section 6(3) of the Constitution because it had effect as part of the law of Trinidad and Tobago immediately before the Constitution commenced. That was a straightforward factual inquiry. It did not require an assessment of the Act’s quality or legal certainty: paras [48]-[57].
2. Section 6(1) made existing laws constitutional for the purposes of sections 4 and 5, even if they would otherwise conflict with those provisions. The savings clause served legal certainty and reserved to the legislature the decision whether, and how, to change pre-existing laws. The reasoning in Johnson v Attorney General of Trinidad and Tobago [2009] UKPC 53 and Chandler v State of Trinidad and Tobago [2022] UKPC 19 was followed.
3. Section 1 was operative and binding, rather than merely declaratory. It imposed substantive requirements concerning structural features of a sovereign democratic state. These included representative government, in which representatives are chosen by popular vote, and separation of powers, including the performance of judicial functions by the judiciary. The Board relied on Maharaj v Cabinet of the Republic of Trinidad and Tobago [2023] UKPC 17 and considered the reasoning in State of Mauritius v Khoyratty [2006] UKPC 13.
4. Section 1 could not be given an expansive meaning which substantially duplicated sections 4 and 5 and circumvented section 6. It was not inherent in democracy that courts must review pre-existing legislation for incompatibility with freedom of expression. The Constitution’s allocation of responsibility to the legislature was part of its democratic structure. The Australian authorities relied upon were distinguishable because the Australian Constitution had neither an express freedom-of-expression provision nor an equivalent savings clause.
5. Obiter, the Board observed that, if a prosecution arose, the principle of legality could support reading the Act as requiring an intention to incite violence or disorder. It gave weight to the Court of Appeal’s proposed context-sensitive approach, including contemporary social conditions and appropriate latitude for freedom of expression. No final construction was required because no prosecution had been brought.

• Privy Council: In [2023] UKPC 36, the Board dismissed the appeal.
• Court of Appeal of the Republic of Trinidad and Tobago: On 26 March 2021, the Court of Appeal allowed the Attorney General’s appeal and held that sections 3 and 4 of the Sedition Act 1920 were constitutional.
• High Court: On 13 January 2020, Seepersad J declared sections 3 and 4 of the Act invalid for uncertainty and inconsistency with the Constitution.