A Muslim police officer who lost his legal challenge in February over a policy of the police service preventing its personnel from having beards has appealed the court’s decision.
On February 9, Justice Betsy-Ann Lambert-Peterson dismissed Kristian Khan’s constitutional claim.
She held the policy under the police service regulations was immune from judicial challenge because of the constitutional savings clause.
Under Section 6 of the Constitution, legislation in breach of citizens’ fundamental rights cannot be challenged if passed before the country’s Constitution was amended in 1976.
In assessing Khan’s case, Justice Lambert-Peterson ruled 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.
“Given the operation of the savings clause, adjudication on whether the claimant’s rights were breached was rendered otiose,” she added.
Lambert-Peterson ordered Khan to pay half the legal costs incurred by the Attorney General in defending the case.
In his court filings, Khan said when he joined the police service in 2014, a senior officer instructed him to shave or obtain a medical exemption, and he reluctantly complied.
Khan presented the evidence of Islamic experts Mufti Abraar Alli and Mufti Wazim Khan. Both claimed wearing a beard is a fundamental part of Islam. Khan contended that shaving the beard is considered unlawful and impermissible by leading Islamic jurists.
His appeal says the decision was contrary to law and against the weight of evidence.
“The court was plainly wrong to find that regulation 143(3)(b) of the police service regulations 2007 and/or standing order 6 Section 5 are saved laws pursuant to section 6(1)(b) of the Constitution and hence immune from constitutional challenge.”
“The court ought to have held that the repeal and re-enactment of the saved law must be simultaneous,” the grounds of appeal said.
In his appeal, Khan wants an order reversing Lambert-Peterson’s decision and a further order granting the declarations he sought in his original claim.
In recent separate judgments, at least two Muslim prison officers have been successful in their cases over a similar policy in the prison service.
Khan is represented by Anand Ramlogan, SC, Jayanti Lutchmedial, Kent Samlal, Robert Abdool-Mitchel, Natasha Bisram and Vishaal Siewsaran.
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