Brad Lee Lum v The Attorney General of Trinidad and Tobago
| Jurisdiction | Trinidad & Tobago |
| Judge | Mr. Justice Robin N. Mohammed |
| Judgment Date | 26 June 2023 |
| Neutral Citation | TT 2023 HC 194 |
| Docket Number | CLAIM NO: CV2021-02540 |
| Court | High Court (Trinidad and Tobago) |
In the Matter of An Application for Constitutional Redress Pursuant to Section 14 of the Constitution of the Republic of Trinidad and Tobago
and
In the Matter of the Constitutional Validity of Section 138 of the Police Service Regulations
the Honourable Mr. Justice Robin N. Mohammed
CLAIM NO: CV2021-02540
IN THE HIGH COURT OF JUSTICE
Mr. Anand Ramlogan SC leading Ms. Renuka Rambhajan, Ms. Jayanti R Lutchmedial and Mr. Jared Jagroo instructed by Ms. Natasha Bisram and Mr. Vishaal Siewsaran for the Claimant
Ms. Nadine Nabie, Ms. Nicol Yee Fung, Ms. Zara Smith and Ms. Chelvi Ramkissoon instructed by Ms. Radha Sookdeo and Ms. Michelle Benjamin for the Defendant
| Introduction & Procedural History | 3 |
| Factual Background | 4 |
| The Claimant's Case | 6 |
| The Defendant's Case | 8 |
| Relevant Constitutional Provisions | 9 |
| History of Impugned Regulation | 12 |
| Issues | 16 |
| Law and Analysis | |
| Whether Regulation 138 is saved law? | 17 |
| Whether Regulation 138 breached Section 4(c), (e) and (i) of Constitution | 33 |
| Legal Certainty | 57 |
| Right to Privacy | 63 |
| Right to Freedom of Expression and Political Expression | 73 |
| Applicable Interpretation of the Constitutional Rights | 77 |
| Conclusion | 97 |
| Disposition | 98 |
The balancing act between the protection of fundamental human rights and legitimate public interest concerns is no easy task for the Courts especially where the interest of holders of public offices are engaged.
In the case at bar the Claimant seeks to challenge the constitutionality of Regulation 138 of the Police Service Regulations (‘PSR’) on the basis that it disproportionately breaches his rights to freedom of expression and/or the right to freedom of political expression, and his right to privacy. It is also not reasonably justifiable in a democratic society that has a proper respect for the rights and freedoms of the individual.
On 5 th August 2021, the Claimant by Fixed Date Claim and affidavit in support of Brad Lee Lum instituted proceedings against the Defendant seeking the following reliefs:
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a. A declaration that Regulation 138 of the Police Service Regulations is in breach of the Claimant's rights to respect for his private and family life under Section 4(c), the right to join political parties and express political views under Section 4(e) and freedom of thought and expression under Section 4(i) of the Constitution;
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b. A declaration that Regulation 138 of the Police Service Regulations is unconstitutional, null, void and of no legal effect;
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c. A declaration that the institution of disciplinary proceedings and the charging of the Claimant would breach his rights under Sections 4(c), (e) and (i) of the Constitution;
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d. Damages including vindicatory damages;
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e. Costs; and
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f. Such further and/or other relief, orders or directions the Court may see fit in the exercise of its jurisdiction under Section 14 of the Constitution and under its inherent jurisdiction for the enforcement and protection of the Claimant's rights.
On 24 th January 2022 and 1 st January 2022, the affidavits of Inspector Anthony St. Clair Regimental No. 14002, Police Corporal Andy Williams Regimental No. 14615, Ag. Assistant Superintendent of Police Sheridon Hill Regimental No. 12213 were filed on behalf of the Defendant in response to the Claim.
On 27 th May 2022, the parties filed and exchanged written submissions. Reply submissions were filed by both parties on 1 st July 2022. On 5 th July 2022, the parties were invited to make oral submissions. At the start of the Defendant's oral submissions, counsel indicated that they had been apprised of a new authority which came to light upon further research. In this regard, an order was made for this new finding to be reduced into writing and the Claimant was given an opportunity to respond. Accordingly, supplemental submissions were filed by the Defendant and Claimant on 22 nd July 2022 and 15 th August 2022, respectively.
It is upon the basis of these submissions and evidence that the Court makes its determination.
The challenge to Regulation 138 arose out of circumstances surrounding a Facebook post that was made from the Claimant's Facebook account that caused a stir on social media and resulted in him being charged and suspended subject to an investigation.
The Claimant is a Police Constable Regimental No. 19163 and was attached to the Anti-Kidnapping Unit of the Trinidad and Tobago Police Service (“TTPS”) prior to his suspension.
On Saturday 19th June 2021 at around 10:30am a post was published on the Claimant's Facebook account, which read:
“Where is Abu Bakr [man wearing a turban emoji] boi?
Feel this Government [businessman emoji] need ah shake up yes.
[Thinking face emoji, thinking face emoji, thinking face emoji]”
On 21st June 2021, the Claimant reported for duty, and was served by Corporal Andy Williams Regimental No. 14615 with a Warning Notice for a breach of discipline under Regulation 138(1) Police Service Regulations 2007. The Notice stated:
“On Saturday 19th June 2021 you distributed a post on Social media via the Internet in the nature of a personal comment on matters of Public Expression of a Political Nature contrary to Regulation 138(1) of the Police Service Regulations, 2007.”
On Tuesday 22nd June 2021, the Claimant reported to the Port-of-Spain Criminal Investigation Department (CID) but was told to return to home and retrieve all items of his kit and return to the CID. Upon his return, he handed over the items of his kit and was served by Inspector St. Clair with a Notice of Suspension dated 21 st June 2021 which the Claimant signed and dated on 23rd June 2021.
On Thursday 24th June 2021, the Corporate Communications Unit of the TTPS published a Media Release informing the public that the Claimant was suspended following an investigation into a breach of Regulation 138 PSR in relation to his post on the internet. The release read as follows:
June 24th 2021
MEDIA RELEASE
Police Officer Suspended for Inappropriate Social Media Post
Police Constable No. 19163 BRAD LEE LUM has been suspended following an investigation into his breach of the Trinidad and Tobago Police Service's Regulations. The officer, who has seven years of service, was last attached to the CID-Anti-Kidnapping Unit.
On Saturday 19th June 2021, PC Lee Lum distributed a post on Social Media via the Internet, in the nature of a personal comment on matters of public expression of a political nature, contrary to Regulation 138 (1) of the Police Service Regulations, 2007.
On the issue of the officer's suspension, Commissioner of Police, Gary Griffith said that he cannot condone the irresponsible behaviour of the officer who alluded that it was time for an insurrection in his social media post. The Commissioner added that having served this country during the violent 1990 insurrection, and having seen the damage done to our country and our democracy, he was appalled that an officer would even hint that insurgents should overthrow the Government.
The CoP made it clear that in comparison to the average citizen, when a person joins the Police Service they lose certain liberties regarding freedom of speech. He added that the TTPS expects strict adherence to the Regulations and recalled that another officer was recently suspended and remains on suspension because he appeared on the front page of a daily newspaper openly endorsing a political party and showing party affiliation, contrary to said Regulations.
Commissioner Griffith reiterated that the TTPS will not tolerate officers who show political partisanship and make comments against the State.
The Claimant asserts that at around 10:45am on 19th June 2021 he began receiving an unusually large number of Facebook notifications and on opening the Facebook Application, he saw the alleged inflammatory post which appeared to emanate from his account. He immediately deleted the post as he was of the view that his Facebook account had been hacked or was being used by someone who was able to gain access to his account using the communal computers at the Police Station where he had previously logged into his account. He indicated that at times while using the communal work computer, he was taken directly to his Facebook account without any prompt to enter his password.
The Claimant denies being the author of the post or having any influence in the authorship or publication of the message. He asserts that he has no affiliation nor interest with any political party and has never expressed any political opinion on Facebook or even social settings as he is of the view that it causes rifts between persons.
On 20 th June 2021, the Claimant was contacted by Constable Charles who informed him that there was a screenshot of his post and that it was circulating on social media. The Claimant intimated that he did not understand how the post caused such a stir. He posits that he interpreted the post as a rallying cry for Fuad Abu Bakr, political leader of the “New National Vision”, to speak out against the perceived mismanagement of the Covid-19 crisis. However, he eventually realized that the post could have been interpreted by some people as a call back to the 1990 Coup.
While denying he was the author of the post, the Claimant noted that the post was open to many different interpretations and amounts to a legitimate exercise of the right of freedom of expression and political expression.
He contends that the post was posted on a personal Facebook account outside of work hours and did not purport to be the official stance of the Trinidad and Tobago Police Service...
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