The Court of Appeal has reserved its decision in the case of a police officer who is appealing the dismissal of his case challenging the constitutionality of a regulation precluding police officers from expressing their views publicly.
Appellate Judges Mark Mohammed, Peter Rajkumar, and Maria Wilson reserved judgment after hearing submissions in the appeal brought by PC Brad Lee Lum at the Hall of Justice in Port-of-Spain, yesterday afternoon.
Lee Lum, who was last assigned to the Anti-Kidnapping Unit (AKU), filed the case after he was suspended pending the outcome of a disciplinary tribunal over a post that appeared on his Facebook page on June 19, 2021.
While Lee Lum denied making the post as he claimed that his account was hacked, he claimed that Section 138 of the Police Service Regulations, under which he was disciplined, breached his constitutional rights to freedom of expression and political expression as well as his right to privacy.
The regulation states: “An officer shall not, without the written permission of the Commissioner, broadcast on the radio, television, Internet or by any other means or publish in any manner any statement which is in the nature of a personal comment on any national or local political or administrative matter unless his official duties require him to do so.”
Last June, the case was dismissed by High Court Judge Robin Mohammed, who ruled that the regulation was reasonably justifiable and did not breach his rights.
Lee Lum’s lawyer Anand Ramlogan, SC, called on the appeal panel to overturn their colleague’s decision. He said while the prohibition against expressing political views is acceptable, the regulation is vague, uncertain and imprecise and unfairly barred police officers from exercising freedom of speech in matters affecting them.
“You have to carve out a space to allow for freedom of expression,” he said. “It is impossible to police freedom of expression.”
Ramlogan asked the panel to consider the increasing popularity of social media and suggested that a nuanced and tiers system be implemented under which only senior officers, who devise strategy and policy, should be subject.
“Why should a dog groomer or handler in the Canine Unit be subject to the same restrictions as the Commissioner of Police when they perform completely different functions?” he asked.
He noted that police officers are not barred from joining a political party or from providing funding to one and contended that the regulation is poorly drafted.
“If the Commissioner of Police is corrupt, do I have to write to them to get permission to expose them?” Ramlogan asked.
He added that if the panel was minded to allow the appeal, it should allow Parliament to redo the regulation instead of amending it themselves.
“Parliament should determine how it should be redrafted,” he said.
Responding to the submissions, attorney Vanessa Gopaul, who led the legal team for the Attorney General’s Office, suggested that Lee Lum was seeking to usurp the disciplinary process by launching a parallel collateral attack on the constitutionality of the regulation he is facing disciplinary action under.
“Until the tribunal does its job, it cannot be said that his constitutional rights have been breached,” she said.
Gopaul described the case as premature and speculative. She also suggested that Lee Lum’s statements were not political but seditious.
However, she admitted that he could not be prosecuted under the Sedition Act as there is a one-year limit for charges to be instituted after a statement with seditious intent is published.
Gopaul also said the regulation was justified as it sought to preserve the independence of the T&T Police Service (TTPS) and insulate it against accusations of political partisanship by its officers.
“The rationale is a legitimate one,” she said.
Lee Lum was also represented by Kent Samlal and Vishaal Siewsaran, while Nicol Yee Fung appeared alongside Gopaul for the State.
