By FRANCIS JOSEPH
The Attorney General has gone to the Privy Council in London hoping to overturn a Court of Appeal decision which says that Muslim police officers can wear beards while on duty.
The appeal was issued on Tuesday. However, no date has been fixed for the hearing before a full panel of five judges. In the appeal, Anand Ramlogan SC will appear for PC Kristian Khan.
On February 9, 2024, Madame Justice Betsy-Ann Peterson dismissed the constitutional motion brought by Khan.
She ruled:
1. Regulation 143(3)(b) of the Police Service Regulations 2007 is saved law pursuant to section 6(1)(b) of the Constitution and is therefore not unconstitutional.
2. Standing Order 6, section 5 of the Police Service Regulations 2007 is not unconstitutional.
3. The Claim filed on the 2nd of February 2023 is dismissed.
4. The Claimant (Khan) do bear one half of the AG’s costs to be assessed by a Registrar in default of agreement.
Khan appealed. The appeal was heard before Justices Mark Mohammed, Maria Wilson, and James Aboud. On January 30 this year, the Appeal Court ruled for Khan.
The court found:
1) The trial judge erred in determining that regulation 143(3)(b) was saved law under Section 6(1)(b). 2)
The trial judge’s finding that regulation 143(3)(b) was valid and immune from constitutional scrutiny under sections 4 and 5 of the Constitution is set aside.
3) It is declared that Khan’s right to equality before the law and the protection of the law and his right to freedom of conscience and religious belief and observance has been infringed or is likely to be infringed by the male facial hair policy while on duty as an officer of the TTPS, Central Division.
4)It is also declared that regulation 143(3)(b) and Standing Order 6, section 5, are unconstitutional, invalid, and null and void to the extent that it makes no provision for the growing of a beard on religious grounds.
5) The issue of Khan’s damages for the threatened or other breach of his constitutional rights is remitted to a Master to be assessed in default of agreement.
That assessment is still pending.
THE CASE
The crux of Khan’s case was that around the 16th of September 2022, he was instructed by Police Sergeant Glen Persad to shave his beard or obtain an exemption from shaving, and if he failed to do so, he would face disciplinary proceedings.
In his affidavit, Khan detailed his lifelong practice of the Muslim faith. He stated that he had been an active member of the Diamond Village Masjid since he was a child, attended denominational schools managed by Anjuman Sunnat ul Jamaat Association, and adhered to the teachings of Islam in relation to his diet, observance of Islamic occasions, and other activities.
Khan joined the TTPS in April 2014. He served as a member of the Special Operations Response Team (SORT) division of the TTPS. While in SORT, he was permitted to grow his beard. SORT was disbanded in 2022. Khan was reassigned to the Central Division. He still maintained a beard trimmed to about one inch in length.
Khan was instructed by Sergeant Glen Persad to shave his beard or get an exemption from shaving. He was told that should he fail to do so, he would face disciplinary proceedings. Khan detailed that the conversation with Sgt Persad resulted in him feeling humiliated.
To his knowledge, wearing his beard is important under the teachings of Islam. He felt tormented as he had to choose between his career and his religious belief and conviction. This has caused great anxiety, distress and inconvenience. He was cross-examined on his evidence. Under cross-examination, Khan admitted that he sought an “artificial exemption” one month after his conversation with Sergeant Persad on the 22nd of October 2022.
He admitted that he did not always submit his exemption request or certificate to be included in his personal file because he did not have a medical issue to justify obtaining an exemption. He explained that he would show the exemption to his superior and keep a copy of it on his person to produce in the event he was reprimanded by a senior officer about his wearing his beard.
Evidence was given by two Islamic experts. Mufti Abraar Alli and Mufti Wazim Khan. A Mufti, an expert in Islamic legal matters permitted to give rulings on Islamic issues such as marriage, divorce, prayer, business, and trade. The role of the Mufti is to use their education and training in Islamic law to interpret the law and provide guidance to followers of Islam, or render an opinion on a matter that touches and concerns the interpretation of Islamic law and tradition.
Both experts outlined that Islam required men to keep a beard and not shave, based on the teachings of the Prophet Muhammad. Mufti Alli noted that the beard is seen as a sign of Islamic identity, and an expression of faith. Mufti Khan explained that shaving the beard is considered to be unlawful and impermissible by the majority of the leading jurists of the four schools of Islamic Jurisprudence.
THE AG’S DEFENCE
Sergeant Persad’s evidence concerned his conversation with Khan in 2022. He deposed that Inspector Boxer, his superior officer at the police station, had noted Khan’s beard and asked Persad about it. Sgt. Persad approached Khan and informed him to shave his beard or get an exemption.
Sergeant Persad’s evidence was that he was never told that the beard was a part of his religious beliefs. In addition, he had no knowledge of Khan’s religious beliefs. Sergeant Sherwin Waldron was a supervisor in the Special Operations Response Team (SORT). He was Sergeant Administration at the operations department in 2020. His duties included record keeping for all staff members, approving leave, revising duties and work schedules and other administrative functions.
He reported to the head of SORT. His evidence was that Khan wore a beard between March 2019 to March 2022 whilst in SORT. During his tenure as Sergeant Administrator, Khan made no written or verbal request for leave or time-off to attend Jumah.
Sergeant Waldron was cross-examined on his affidavit. Under cross-examination, he testified that outside of medical exemptions, the clean-shaven face policy of the TTPS is a mandatory requirement. He was aware that police officers complained about the clean-shaven face policy. He stated that there was no exception for Muslim police officers.
Corporal Jason Sarran was Khan’s supervisor at the Central Division Task Force from the 15th of August 2022 to the 1st of May 2023. He noted that Khan made no request for time off or variation of hours for the purpose of attending Jumah prayers on Fridays.
He said permission would have been necessary since they work on a shift basis 24 hours on and 24 hours off. Assistant Superintendent of Police Lucien Ferguson was the ASP in charge of the TTPS’s legal unit. By virtue of this position, he had access to the files, documents and reports pertaining to the human resources and legal matters involving the TTPS. The witness set out the statutory and regulatory framework which governs the TTPS. He also deposed to the result of searches for exemptions and requests for exemptions.
