No injunction against UNC senator: judge says Cummings' case 'weak'

YOUTH Development and National Service Minister Foster Cummings has failed in his attempt to stop Opposition Senator Jayanti Lutchmedial from publicly speaking about his private and confidential information.

On Friday, Justice Nadia Kangaloo refused to grant Cummings an injunction against Lutchmedial, saying she was not satisfied there was need for one.

The judge said Cummings – who is also the MP for La Horquetta/Talparo and general secretary of the ruling People’s National Movement – failed to provide evidence to support his contention that Lutchmedial's statements and the publishing of personal information, including banking details, were reckless and affected his family life.

His complaint of the harm caused to him and his family, she said, did not materialise and had been defused by his rebuttals to Lutchmedial’s statements in the print media and by comments in support of him on the Facebook platform.

The judge also said Cummings’s evidence was “comparatively weak,” which was “fatal” to his application.

“None of the matters complained of are deserving of the restraint sought.”

Kangaloo pointed to Lutchmedial’s 934-page affidavit, saying the senator set out a “reasonable, methodical and reasoned approach” to determine the authenticity of the documents she referred to at a UNC Monday Night Platform forum on May 5 and 16 and posted on her Facebook page on May 17. She also said the senator’s fair-comment defence was “not fanciful,” and much of the information complained of was already in the public, since Cummings was a minister and person in public life.

As she referred to previous decisions on Facebook defamation claims involving politicians, the judge said she had to weigh the balance between the right to private life and the right to freedom of political thought and expression.

She acknowledged there will be “obvious tension” between freedom of expression and someone’s reputation, but added politicians cannot expect to be protected from fair criticism, as that could have a “chilling effect on democracy.”

Kangaloo also said as a “seasoned and politically-exposed” person, Cummings was “well able to muster the mental fortitude to robustly rebuff any allegation.”

She also said the payment of compensation would be sufficient if the matter goes to trial and the minister was successful.

Two Fridays ago, Cummings’s attorneys filed an emergency application to stop Lutchmedial from publicly speaking of his private and confidential information and to get her to take down all information about him and his banking details posted on her Facebook page.

He also sought to have her take down recordings of her statements of May 16.

Although reference was made to her earlier statements on May 5, on the same platform, in which she released the contents of a Special Branch report on the minister, the injunction application took issue with her use of his financial records.

At the Monday Night Forum, Lutchmedial raised questions over a public entity's payment into the credit union account of a high-ranking public official.

She said the payment was disclosed in a source-of-funds declaration form. Lutchmedial said the form was leaked, along with two letters of award from the public body, plus the personal identification of a woman involved in the transaction.

The senator said a cheque from the public body was also uncovered and it was made out directly to the credit union. The letters of award were made out to a relative of the public official and were provided to support the declaration, Lutchmedial said.

Cummings has since publicly clarified the business transactions. In his injunction application, he also provided an explanation for the transactions.

He said the company, Rivulet Investment Group Ltd, which is owned by his wife, Juliet Modeste, received loans over the years from the credit union. Cummings was the former CEO at Rivulet and a director at Pical Services Ltd – the two companies the senator identified – before he became a minister.

In her defence, Lutchmedial said as an opposition senator, it was her duty to hold the Government to account “in the interest of transparency, accountability and good governance.”

She said the information she received from a whistleblower was a cause for public concern, and required some explanation and an investigation.

Lutchmedial contended she had a right to freedom of political thought and expression and as a senator, she was entitled to exercise that right in the public’s interest.

She denied defaming the minister, saying after her inquiries when she received the documents, her statements were honest and made in good faith without malice.

Lutchmedial maintained any attempt to injunct her would be an attempt to muzzle her and suppress her rights.

“Taxpaying citizens have a right to know about the conduct of their elected officials,” she said in her defence.

Cummings’s attorneys had written to her asking her to remove the recordings from her social media accounts, but although her legal team asked for more time to respond, he filed for injunctive relief, the judge mentioned in her ruling.

At the hearing of the injunction application, Lutchmedial’s lead attorney, former AG Anand Ramlogan, SC, opposed the granting of an injunction, saying it was an “unjustified attempt to muzzle a senator” and was so wide, it sought to muzzle the entire Opposition party. He said an injunction would only serve to fetter freedom of political expression, which was paramount to democracy.

Since the hearing of the injunction application, the police have confirmed there is an active investigation involving the minister.

On June 2, acting Snr Supt Deryck Walker, who is assigned to the Anti-Corruption Investigation Bureau (ACIB), said investigations such as the one involving Cummings, can take “from a day to ten years,” depending what is uncovered in the investigation.

On May 30, acting Commissioner McDonald Jacob confirmed this.

In October 2021, the police applied to the court for production orders for information from several financial entities as they probed payments to companies formerly linked to the minister.

Cummings’s attorneys objected to the police's application before the court, made under section 32 of the Proceeds of Crime Act, on the grounds that the production orders could not be used in the way they wanted and that the application was too wide.

The judge hearing the matter suspended the production orders and in October last year, ruled against the objection of Cummings’s lawyers.

For his part, Cummings told the media at a press conference he was confident any investigation by the police will show all was above board regarding the deposits to his credit union account on behalf of the business.

The prime minister has also staunchly defended his minister. Dr Rowley has said he will not fire Cummings over the allegations and, after speaking to the minister, was satisfied that everything was above board.

Cummings was represented by attorneys Farai Hove Masaisai, Christopher George and Jennifer Farah-Tull. Also appearing with Ramlogan for Lutchmedial are Kent Samlal, Jared Jagroo, Vishal Siewsarran and Natasha Bisram.