Senior Reporter
derek.achong@guardian.co.tt
A T&T Prison Service policy barring Muslim prison officers from keeping beards has been deemed unconstitutional.
High Court Judge Margaret Mohammed issued the declaration yesterday as she upheld a constitutional lawsuit brought by Arshad Singh.
Singh’s victory in the case came less than two weeks after another High Court Judge dismissed a somewhat different case over a similar policy within the T&T Police Service (TTPS).
According to the evidence in the case, Singh admitted that he had previously been allowed to keep a short beard for security reasons but claimed that he wrote to the Prison Service seeking permission after it grew longer when he went to perform Hajj in Saudi Arabia.
Singh was due to be promoted to the rank of Prison Officer II but was removed from a promotion ceremony in September 2022 after acting Prisons Commissioner Deopersad Ramoutar saw his beard and questioned him about it.
Singh filed two cases over what transpired and obtained an injunction blocking disciplinary action for his beard until they (the cases) were determined.
One case challenged his failed promotion, while the other claimed that the beard policy breached Singh’s constitutional right to freedom of conscience, religious belief and observance.
At the end of the trial before Justice Mohammed, Ramoutar’s legal team conceded that his decision to block Singh’s promotion was unreasonable.
Justice Mohammed did not determine the appropriate compensation for Singh in the promotion case as she referred such an assessment to a High Court Master.
In his constitutional claim, Singh presented the expert evidence of Maulana Abdul Salam, of Darul Uloom T&T, who testified that keeping a beard and allowing it to grow is essential for Muslim men.
In defence of the case, State attorneys claimed that the policy, found in General Orders for the service, is intended to ensure uniformity, instil discipline, and ensure tidiness and cleanliness.
Ramoutar admitted that some officers were given exemptions on medical grounds and for security reasons.
In her judgment, Justice Mohammed stated that Ramoutar’s justification for the policy was undermined by the exemptions granted and a lack of evidence to justify it.
Admitting that policies and procedures to instil discipline are laudable, Justice Mohammed said: “However, those policies and procedures cannot limit or restrict any prison officer including the claimant’s guaranteed right to practice and observe one’s religion and belief, as the Constitution is the supreme law in T&T.
“In my opinion, the wearing of the hijab by a Muslim woman police officer while on duty is no different from the male Muslim prison officer wearing a beard while on duty, as in both instances those practices are fundamental in their observance of the Islamic faith,” she added.
Vindicatory damages
are to be calculated
Justice Mohammed granted a series of declarations against the policy but also ruled that Singh should receive vindicatory damages for breach of his constitutional right.
Pointing out that in the case Ramoutar maintained that the service does not discriminate based on religion for its officers and inmates, Justice Mohammed noted that the general orders prescribing the policy should have been amended without the court’s intervention.
“In my opinion, this aspect of the commissioner’s evidence was a clear demonstration that he is acutely aware of the importance of not discriminating on religious grounds, but his actions were the intentional application of general orders which by their very nature are discriminating on religious grounds,” she said.
The vindicatory damages are to be calculated by the same High Court Master assigned to assess the damages in the promotion case.
Early last year, Muslim prison officers Sherwin Ramnarine and Javed Boodram obtained an injunction from Justice Mohammed over a move to transfer them based on their beards.
Based on the outcome of Singh’s case, the duo’s case essentially became academic with Justice Mohammed just having to decide whether they are entitled to compensation.
On February 9, High Court Judge Betsy-Ann Lambert-Peterson dismissed a lawsuit on the TTPS beard policy brought by PC Kristian Khan.
In that case, Justice Lambert-Peterson had to consider whether the policy under Police Service Regulations, introduced in 2007, was immune from judicial challenge based on the constitutional savings clause.
Under Section 6 of the Constitution, legislation which is found to breach citizens’ fundamental rights cannot be challenged if passed before the country’s Constitution was amended in 1976.
Amendments to pre-1976 legislation, such as the regulations, are also immune provided that they (the amendments) derogate from fundamental rights in the same manner as the previous legislation.
Justice Lambert-Peterson ruled that the 2007 amendment to the regulations on facial hair mirrored regulations that were in place in 1965.
“As such, it is an existing law and is protected from having to satisfy the constitutional requirements in the fundamental rights provisions in the Constitution,” she said.
The outcome of Khan’s case came hours after High Court Judge Robin Mohammed upheld a constitutional challenge to the minimum height requirement for people seeking entry into the TTPS.
In his judgment, Justice Mohammed noted that the 2007 regulations lowered the height requirement for prospective male officers by almost two centimetres and the height requirement for prospective female officers by almost 13 centimetres.
He said that the change resulted in the unjustified exclusion of more male candidates with the same height or taller than female candidates.
Both cases are now expected to be considered by the Court of Appeal.
Singh was represented by Sunil Gopaul-Gosine and Imran Khan, while the Office of the Attorney General was represented by Coreen Findley, Janique Mitchell, Kristyn Lewis and Akeenie Murray.
