SDMS lawyers write AG: "Nakhid was never asked to remove hijab"

Lawyers representing the Sanatan Dharma Maha Sabha (SDMS) insist that at no point did staff at the Lakshmi Girls Hindu College ask Nafisah Nakhid to remove her hijab when she turned up there as part of an On-The-Job training programme.

The attorneys have written to Attorney General Faris Al Rawi, questioning the basis for and Interpretation Summons in the courts and saying the SDMS will not participate in the proceedings.

In a long-worded letter, the attorneys point to the Youtube video by Nakhid, stating that she herself made it clear that she was not asked to remove her hijab.

Attorney Keil Taklalsingh says that claims that the SDMS does not allow Muslims on its compound are not true.

"We further wish to place on record that the SDMS has absolutely no policy and/or rule which forbids Muslims from entering its compound and it is a matter of record that teachers and students of the Islamic faith attend and fully participate within the operations of Lakshmi Girls High School. Ms. Nakhid’s conclusion that a rule prohibiting the wearing of the hijab automatically translates to a prohibition of all Muslims is unfortunate and respectfully devoid of merit," the letter states.

The letter states that the SDMS does not agree that its position on the wearing of hijabs on the school's compound, amounts to discrimination.

"Ms. Nakhid further accepts in her complaint that it was fully and respectfully explained to her that the rule against the wearing of the hijab was not simply a school rule, but rather a rule of the SDMS Board. From the aforementioned excerpts, the substance of Ms. Nakhid’s contemporaneous complaint is that the SDMS rule of prohibiting the wearing of a Hijab on the SDMS compound is wrong and should not be allowed. Certainly, while Ms. Nakhid is entitled to her opinion on this matter, the SDMS respectfully disagrees with that position and asserts the right to manage the internal affairs of its compound pursuant to its discretion and in conformity with its religious views, beliefs and its rights under the CONCORDAT 1960."

The full text of the letter sent to the Attorney General is below.

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"I write with reference to the captioned matter wherein I act with Mr. Dinesh Rambally, Ms. Karina Singh, Ms. Desiree Sankar and Mr. Stefan Ramkissoon on behalf of the Sanatan Dharma Maha Sabha of Trinidad and Tobago (Incorporated by Act 41 of 1952) (SDMS). We are led by Mr. Seenath Jairam S.C.

The SDMS is a religious organisation that advances, promotes and defends the practice of Hinduism. Further, its Constitution specifically mandates, inter alia, that its aims and objectives include carrying on educational work by establishing and maintaining Schools, Colleges, Training Colleges and other Educational Institutions and to affiliate any such institutions already established so as to achieve its aims and objects. The matters referred to hereunder are meant to inform you of the SDMS’ position since you are not only the legal adviser to the Cabinet but also the guardian of the Constitution and the entire public’s interests and welfare.

It has come to our Client’s attention that at a Post Cabinet Press Conference held on the 24th of May 2018, it was expressed by Members of the Cabinet that the Attorney General’s Office intends to commence legal proceedings in the form of an Interpretation Summons. The tenor of the post cabinet discussions/announcement suggests that the ostensible purpose of these legal proceedings involve certain rules of the SDMS and/or recent alleged actions of the Lakshmi Girls Hindu College in relation to the referral of Ms. Nafisah Nakhid by the State run and sponsored, on the job training programme (OJT).

For the avoidance of doubt, in an effort to dispel any ambiguity with respect to the parameters of these proposed proceedings and to determine whether such proceedings are indeed necessary and/or appropriate, we respectfully request that our Client be furnished with proper particulars of what exactly the State requires to be interpreted by the High Court. Given what has been stated thus far, it cannot be reasonably disputed that such proposed proceedings would have a direct and focussed impact on the SDMS, its members, followers, adherents and all those Hindus whom it represents and may even lead to restrictions upon the autonomy of the SDMS to administer its affairs within the sanctity of its premises. In those circumstances, you would no doubt agree that disclosure of the matters being sought are reasonable and should be forthcoming from the Attorney General’s Office at the earliest. In any event, we wish to take this opportunity to point out the following pertinent matters.

It has been reported that the factual premise of the decision to institute this Interpretation Summons is an allegation that administrators of the Lakshmi Girls Hindu College asked Ms. Nakhid to remove her hijab. We wish to place on record our Client’s vehement denial that anyone let alone the Administrator of the said School asked Ms. Nakhid to remove her hijab. Further, while there are numerous YouTube videos which appear to be posted by Ms. Nakhid such as videos titled “Quick and Easy 5 Minute Look + Fenty Foundation”, “Quick And Easy Eyebrow Tutorial! Using Drugstore Products!”, “I WON A GIVEAWAY!! Victoria’s Secret, Voile Chic, Morphe Haul!”, “The Power of Makeup…” and “MY COUSIN DOES MY MAKEUP! (SO FUNNY)” arising from reports in the mainstream media, we have narrowed down one YouTube Video in particular, titled “ I will not be silenced” in which Ms. Nakhid appears to share her comments over her interaction with the Lakshmi Girls High School. It is noteworthy that nowhere in the self-published complaint of Ms. Nakhid does she suggest that she was specifically asked to remove her hijab but rather accepts at minute 3:46 of her video, in reference to her discourse with the school official, that “she did not ask blatantly to take of your hijab”.

The core of Ms. Nakhid’s complaint is expressed within her video at min 6:02 as “to tell me that hijab is not allowed on your compound and that by extension means that Muslim is not allowed on your compound”. We further wish to place on record that the SDMS has absolutely no policy and/or rule which forbids Muslims from entering its compound and it is a matter of record that teachers and students of the Islamic faith attend and fully participate within the operations of Lakshmi Girls High School. Ms. Nakhid’s conclusion that a rule prohibiting the wearing of the hijab automatically translates to a prohibition of all Muslims is unfortunate and respectfully devoid of merit. She further explains at min 7:06 that “for an organization to go to the extent to say that hijab is not allowed on the compound… that blows my mind”.

Ms. Nakhid further accepts in her complaint that it was fully and respectfully explained to her that the rule against the wearing of the hijab was not simply a school rule, but rather a rule of the SDMS Board.

From the aforementioned excerpts, the substance of Ms. Nakhid’s contemporaneous complaint is that the SDMS rule of prohibiting the wearing of a Hijab on the SDMS compound is wrong and should not be allowed. Certainly, while Ms. Nakhid is entitled to her opinion on this matter, the SDMS respectfully disagrees with that position and asserts the right to manage the internal affairs of its compound pursuant to its discretion and in conformity with its religious views, beliefs and its rights under the CONCORDAT 1960.

The rest of Ms. Nakhid’s complaint descends into conflating the application of this SDMS’ rule with issues of racist segregation and discrimination. At minute 5:51 she inappropriately equates the SDMS rule to “are we back to the days when blacks and whites were not allowed to drink from the same fountain or sit in the same cinemas”. With the greatest of respect to Ms. Nakhid, we do not see how the insistence of an SDMS rule against the use of the hijab could possibly be construed as being compared to the scenarios which she has suggested.

It is common knowledge that not every female Muslim uses the hijab or adopts the philosophy behind such use, the decision to wear a hijab is a matter of personal choice no doubt founded in their interpretation of the Holy Quran. In predominantly Muslim countries it started as a trend in the 1980s while in the western countries, it became popular or fashionable after 9/11, more as a defence or reaction to terrorism. This is not in any way seeking to undermine Ms. Nakhid’s beliefs or decision; but respectfully such a decision is not comparable to an individual’s race or skin colour which is not the subject of personal choice.

The core of Ms. Nakhid’s religious belief which she alleges has been transgressed is the view that women should dress moderately in the presence of men which involves the covering of a woman’s head. In this regard, Ms. Nakhid, when asked if she would be comfortable with the SDMS rule given that the High School is comprised of female students and teachers, clearly articulates the basis of her choice and belief for using the Hijab at 4:44 to 5:01 in her video by stating “I can be in the office without my hijab parading when a male parent comes in…so if I was there and that man who is not my mahram sees me without my hijab”

Critically, the hijab has now become a powerful religious symbol ( although there is no such prescription in the Holy Quoran and is commonly associated with the view as articulated by Ms. Nakhid that women should at all times dress moderately and cover themselves in the presence of men who are not akin to family. Respectfully, while this may be the philosophy of Ms. Nakhid, it is not a philosophy with which the SDMS agrees nor is it a policy that the SDMS promulgates within its Institutions, Schools and in particular its Schools designed for the education of young women. The decision not to wear attire such as the hijab, in the view of the SDMS, is not necessarily to engage in “parading” as Ms. Nakhid phrases it but rather is a matter of personal choice to be made by the individual.

It should be noted that the position of the SDMS is not confined only to the Hijab. The SDMS wishes to place on record that it is also a part of its religious belief that Hindu females should wear a headpiece called an ‘Orni’ but this does not accord with the aforementioned reasons, philosophy, decision, uniform and overall dress code or policy which the SDMS has set for its Schools. The SDMS does not view its similarly circumstanced prohibition against wearing the ‘orni’ as an act of religious discrimination against the Hindus.

Perhaps more importantly, it should be understood that the freedom to practise religion is not to be circumscribed to the right to display religious symbols, garments and paraphernalia openly without restriction. It is a right that is rooted in tolerance and mutual respect which functions in a society comprised of a plethora of religious beliefs and practices. Inevitably, in a society such as ours these practices may collide, as it unfortunately has in this case. Such collision does not arise necessarily from discrimination and/or bigotry, but rather may be the result of each belief system and choices intersecting over an issue. In those circumstances, understanding and compromise should prevail, which clearly was the approach adopted by the SDMS but which, respectfully, seemed to escape Ms. Nakhid.

While the SDMS takes no issue with Ms. Nakhid’s right to proudly display her hijab, the SDMS trusts and expects that Ms. Nakhid and indeed the State should also respect that the SDMS respectfully disagrees with the religious expressions and philosophical underpinnings associated with the hijab and reserves the right to prohibit the use of same within its compound and the educational institutions under its purview.

This view finds ample support in the case of Leyla Sahin v Turkey, a judgment of the European Court of Human Rights. In Sahin (supra) the internationally renowned court of human rights noted the complaint of the applicant at paragraph 70 of its judgment as follows:

70. The applicant submitted that the ban on wearing the Islamic headscarf in institutions of higher education constituted an unjustified interference with her right to freedom of religion, in particular, her right to manifest her religion.

She relied on Article 9 of the Convention, which provides:

“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

The court in resolving this issue found that a prohibition on the Muslim headscarf was not in violation of the freedom of religion and expression.

At paragraph 106, the court held:

“In democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on freedom to manifest one’s religion or belief in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected”

At paragraph 107,

“The Court has frequently emphasised the State’s role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs, and stated that this role is conducive to public order, religious harmony and tolerance in a democratic society. It also considers that the State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed”

The Honourable Court concluded:

As to how compliance with the internal rules should have been secured, it is not for the Court to substitute its view for that of the university authorities. By reason of their direct and continuous contact with the education community, the university authorities are in principle better placed than an international court to evaluate local needs and conditions or the requirements of a particular course (see, mutatis mutandis, Valsamis v. Greece, judgment of 18 December 1996, Reports 1996VI, p. 2325, § 32). Besides, having found that the regulations pursued a legitimate aim, it is not open to the Court to apply the criterion of proportionality in a way that would make the notion of an institution’s “internal rules” devoid of purpose. Article 9 does not always guarantee the right to behave in a manner governed by a religious belief (see Pichon and Sajous v. France (dec.), no. 49853/99, ECHR 2001X) and does not confer on people who do so the right to disregard rules that have proved to be justified (see Valsamis, cited above, opinion of the Commission, p. 2337, § 51).

Indeed, while SDMS has been accused of being “discriminatory” and “antiquated”, it seems that modern jurisprudence supports the view held by the SDMS. In R (on the application of Begum) v Headteacher and Governors of Denbigh High School - [2006] UKHL 15, Lord Hoffman advocated, as the SDMS has been doing and as it does now, for civility in the appreciation of the views of other religions. Lord Hoffman stated at paragraph 59:

I accept that wearing a jilbab to a mixed school was, for her, a manifestation of her religion. The fact that most other Muslims might not have thought it necessary is irrelevant. But her right was not in my opinion infringed because there was nothing to stop her from going to a school where her religion did not require a jilbab or where she was allowed to wear one. Article 9 does not require that one should be allowed to manifest one's religion at any time and place of one's own choosing. Common civility also has a place in the religious life.

Further, we take this opportunity to remind you that the SDMS is not responsible for the employment of OJT’s nor is it a responsibility of the SDMS Board to provide training and guidance to persons referred by the National Training Agency such as Ms. Nakhid. As you are fully aware, SDMS often partners with National Training Agency to facilitate the provision of work experience to members enrolled within that State programme. As such, the SDMS has not deprived Ms. Nakhid of any substantive right and she is free to participate in that programme unfettered by the actions of the SDMS. Indeed, the right of any qualifying citizen to participate in this State programme cannot equate to a right to be enrolled specifically at the Lakshmi Girls High School.

Therefore, references by the Minister of Education with respect to breaches of constitutional rights and freedoms lack veracity and seem bereft of mature thought and sound advice. To use the words of Lord Hoffman, the right to practice religion freely “does not require that one should be allowed to manifest one’s religion at any time and place of one’s own choosing”.

Certainly, while the State is free to expend precious financial resources on resolving academic issues thereby further encumbering an already burdened court system, it should be noted that the aforementioned actions of the SDMS are not unique but is common place within our school system.

For example, Hindu students are not allowed to wear certain religious symbols (raksha, tilak, mangal sutra) within the premises of ASJA schools, and it is a well-known fact that teachers of the Hindu Faith cannot hold senior positions within Roman Catholic Schools. Indeed, these are all permutations of the CONCORDAT and if in fact the State wishes to subject organizations to the expense and scrutiny of legal proceedings, it should not do so in a conspicuously unfair manner by targeting the SDMS but rather engage in an exercise (legal or otherwise) with all denominational boards to demarcate permissible limits of autonomy across the entire education sector!

We note that this issue has generated considerable public debate and commentary with both the School and the SDMS board being subjected to unfounded public vitriol by those who, with the greatest of respect, may not have taken the time to understand the issue and peruse the relevant jurisprudence. It is indeed unfortunate that such public furore has erupted at a time when the administration, staff and students of the Lakshmi Girls Hindu School are deep in preparation for a host of examinations.

We must take the time to point out that our client is extremely concerned over the comments made by the Minister of Education, Anthony Garcia in a News Release of 22nd May, 2018 entitled “Ministry Investigates Alleged Discrimination Against OJT”. He is quoted as having “considered the incident involving Nafisah Nakhid, the hijab wearing On the Job Trainee (OJT)… as a flagrant disregard of the laws enshrined in the Constitution of Trinidad and Tobago.” Minister Garcia has further found that the position of the SDMS “…poses a conflict of interest as it directly contravenes section four of our Constitution.”

Quite disturbingly, however is that it seems the Honourable Minister has reached this conclusion in law and/or in fact when as a matter of fact, the said News Release clearly states at the penultimate sentence that the School Supervision and Management Division of the Ministry had been mandated to provide a full report of the incident. To date, the SDMS is unaware if such a report has been completed since it has not been furnished with a copy of and/or the findings of same. This begs the question as to what information did the Cabinet inform itself of when it decided to pursue Interpretation Proceedings? We note that this Interpretation Proceedings, has in recent times, become quite fashionable by the State.

While the Minister of Education has, with an uncharacteristic vitality, sought to intervene in this matter by an indiscriminate proliferation of legal arguments set to manifest in the form of an Interpretation Summons, please be advised that the priority of the SDMS and the Lakshmi Girls Hindu School is not to participate in contrived legal proceedings but rather to achieve consistent academic excellence and to produce a cadre of independent, patriotic, educated and productive young women of which the entire society can be proud.

You may wish to govern yourself accordingly."

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