Senior Reporter
derek.achiong@guardian.co.tt
Two Muslim prison officers are set to receive compensation from the State for an unconstitutional T&T Prison Service policy barring prison officers from keeping beards.
On February 20, High Court Judge Margaret Mohammed upheld a lawsuit brought by Arshad Singh, who was barred from being promoted by acting Prisons Commissioner Deopersad Ramoutar for keeping a beard, which he claimed was fundamental to his religious beliefs.
At the time of the judgment, Justice Mohammed had two similar cases pending from Singh’s Muslim colleagues Sherwin Ramnarine and Javed Boodram over a move to transfer them based on their beards.
While she previously granted an injunction blocking their transfers, she only upheld their cases on similar grounds to Singh’s, earlier this week.
While Justice Mohammed ordered compensation for breach of their constitutional rights as with Singh, she left the assessment of damages for a High Court Master to do at a later date.
In her judgment in Singh’s case, Justice Mohammed said Ramoutar’s justification for the policy was undermined by 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.”
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 outcome of Singh’s case came weeks after High Court Judge Betsy-Ann Lambert-Peterson dismissed a lawsuit on a similar T&T Police Service (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 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 persons 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 the change resulted in the unjustified exclusion of more male candidates with the same height or taller than female candidates.
The cases are now expected to be considered by the Court of Appeal.
Ramnarine and Boodram were represented by Anand Ramlogan, SC, Jayanti Lutchmedial, Kent Samlal, Natasha Bisram, and Sheldon Sookram, of Freedom Law Chambers.