Kristian Khan v The Attorney General of Trinidad and Tobago

• Jurisdiction: Trinidad & Tobago
• Judge: Mme Justice BA Lambert Peterson
• Judgment Date: 09 February 2024
• Neutral Citation: TT 2024 HC 49
• Docket Number: CV 2023-00323
• Court: High Court (Trinidad and Tobago)

In the Matter of An Application for Redress Pursuant to Section 14(1) of the Constitution of the Republic of Trinidad and Tobago by Kristian Khan a Citizen of the Republic of Trinidad and Tobago Alleging that Fundamental Rights Guaranteed Under Certain Provisions (Section 4(h) and Section 4(b) of the Said Constitution Continue to be Violated

Between

Kristian Khan

Claimant

and

The Attorney General of Trinidad and Tobago

Defendant

Before

Honourable Mme Justice BA Lambert Peterson

CV 2023-00323

IN THE HIGH COURT OF JUSTICE

Appearances:

Mr. Anand Ramlogan SC, Ms. Jayanti Lutchmedial, Mr. Kent Samlal instructed by Ms. Natasha Bisram and Mr. Vishaal Siewsarrran for the Claimant.

Ms. Keisha Prosper, Ms. Trisha Ramlogan, Ms. Avion Romain instructed by Ms. Redhead Ms. Anala Mohan and Mr. Murvani Ojah-Maharaj for the Defendant.

INTRODUCTION

1 This claim concerns the policy of the Trinidad and Tobago Police Service (TTPS) that male officers on duty should present a clean shaven face.

2 The Claimant, a Muslim police officer, seeks redress under the Constitution of Trinidad and Tobago (“the Constitution”). He alleges breaches of his right to freedom of conscience and religious belief and observance (under section 4 (h) of the Constitution) and of his right to equality before the law and protection of the law (under section 4 (b) of the Constitution) and seeks relief from the Court

3 The reliefs being sought by the Claimant are as follows:

• (i) A declaration that the Claimant's right to freedom of conscience and religious belief and observance under section 4 (h) of the Constitution has been breached;

• (ii) A declaration that the Claimant's right to equality before the law and protection of the law under section 4 (b) of the Constitution has been breached;

• (iii) A declaration that Regulation 143(3)(b) of the Police Service Regulations 2007, and Standing Order 6 section 5 of the Standing Orders are illegal, unconstitutional, null and void and of no legal effect;

• (iv) Redress pursuant to section 14 of the Constitution for damages including vindicatory damages;

• (v) Costs

• (vi) Interest

• (vii) Such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of this Chapter to the protection of which the person concerned is entitled pursuant to section 14 of the Constitution

ISSUES

4 The issues which arise to be determined are:

• i. Whether the Regulation 143(3)(b) of the Police Service Regulations 2007, and Standing Order 6 section 5 issued by the Commissioner of Police are unconstitutional?

• ii. Whether the Claimant's rights under sections 4(b) and 4(h) of the Constitution have been infringed?

• iii. Whether the Claimant is entitled to damages?

• iv. If so, in what quantum?

ORDER

5 The Court declares that:

• 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 2 ^nd February 2023 is dismissed.

• 4. The Claimant do bear one half of the Defendant's costs to be assessed by a Registrar in default of agreement.

THE CLAIMANT'S CASE

5 The crux of the Claimant's case is that around 16 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.

6 The evidence on behalf of the Claimant comprises the following:

• i) Claimant's principal affidavit filed on 2 February 2023 and his affidavit in reply filed on 16 May, 2023.

• ii) Affidavit of Abraar Ali

• iii) Affidavit of Wazim Khan; and

• iv) The Claimant's testimony of 16 October 2023.

Evidence of and on behalf of the Claimant

7 In his affidavit, the Claimant details his lifelong practice of the Muslim faith. He states that he has 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.

8 The Claimant joined the TTPS in April 2014. The Claimant 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. The Claimant was reassigned to the Central Division. He still maintained a beard trimmed to about 1 inch in length.

9 The Claimant 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.

10 The Claimant 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.

11 The Claimant feels tormented as he has to choose between his career and his religious belief and conviction. This has caused great anxiety, distress and inconvenience.

12 The Claimant was cross-examined on his evidence at paragraphs 10 and 22 of his primary Affidavit. Under cross-examination, the Claimant admitted that he sought an “artificial exemption” one month after his conversation with Sergeant Persad on 22 October 2022.

13 The Claimant admits 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 explains 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.

14 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.

15 Both experts outlined that Islam requried 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 DEFENDANT'S CASE

16 The evidence of the Defendant comprises the following:

• i) Affidavit of Sergeant Glen Persad

• ii) Affidavit and testimony of Sergeant Sherwin Waldron

• iii) Affidavit of Corporal Jason Sarran

• iv) Affidavit of ASP Lucien Ferguson

17 Sergeant Persad's evidence concerns his conversation with the Claimant in 2022. He deposes that Inspector Boxer, his superior officer at the police station, had noted the Claimant's beard and asked Persad about it. Sgt. Persad approached the Claimant and informed the Claimant to shave his beard or get an exemption.

18 Sergeant Persad's evidence is that he was never told that the beard was a part of the Claimant's religious beliefs. In addition, he had no knowledge of the Claimant's religious beliefs.

19 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.

20 His evidence is that the Claimant wore a beard between March 2019 to March 2022 whilst in SORT. During his tenure as Sergeant Administrator, the Claimant made no written or verbal request for leave or time-off to attend Jumah.

21 Sergeant Waldron was cross-examined on paragraph 5 of 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 states that there was no exception for Muslim police officers. No exemption is based on an officer's religion.

22 Corporal Jason Sarran was the Claimant's supervisor at the Central Division Task Force from 15 August 2022 to 1 May 2023. He notes that the Claimant made no request for time off or variation of hours for the purpose of attending Jumah prayers on Fridays. The deponent notes further that permission would have been necessary since they work on a shift basis 24 hours on and 24 hours off.

23 Assistant Superintendent of Police Lucien Ferguson is the ASP in charge of the TTPS's legal unit. By virtue of this position, he has 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.

RELEVANT LEGISLATIVE PROVISIONS

24 It is undisputed that by Section 1(2) of the Constitution, the Constitution is the supreme law of Trinidad and Tobago. If any other law is inconsistent with the Constitution, that law to the extent of its inconsistency, is void.

25 Section 4 of the Constitution outlines the rights and freedoms protected by the Constitution. The following are relevant for the purposes of this case.

“4. It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental...