“The SDMS has not deprived Ms [Nafisah] Nakhid of any substantive right, […] indeed, the right of any qualifying citizen to participate in [the State-run OJT] 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’.”
The following legal letter to Attorney General Faris Al-Rawi was submitted by attorney Kiel Taklalsingh—acting with colleagues Dinesh Rambally, Karina Singh, Desiree Sankar and Stefan Ramkissoon and led by Seenath Jairam SC—on behalf of the Sanatan Dharma Maha Sabha (SDMS) in response to a potential probe into the Lakshmi Girls High School’s refusal to allow OJT teacher Nafisah Nakhid to carry out her duties in a hijab:
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 off 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 organisation 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 Quran 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.[…] 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:
[…] Indeed, while SDMS has been accused of being “discriminatory” and “antiquated”, it seems that modern jurisprudence supports the view held by the SDMS. […] Further, we take this opportunity to remind you that the SDMS is not responsible for the employment of OJTs 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 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.”
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 organisations 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 22 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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..While we focus on the constitutional/legal aspects of this controversy we must remember this is not the first time the issue of the rights of the State, citizens and denominational boards has arisen – and limitation of said rights.
Of course, it all originates in the political compromise of Dr. Eric Williams’ PNM with the “oppositonist” religions in the early 1960s on the matter of free, universal public education – a key element of the PNM’s nationalist/populist political platform. This compromise is the infamous (in my opinion) Cocordat, under which (even today) the non-religious State funds (essentially carries) denominational schools while the religions exercise key administrative powers within said schools.
This conflict between the rights of the State and citizens on the one hand, and the State funded and often abusive power of denominational boards on the other, will arise and arise and arise until education is truly nationalized and brought under the full control of the State. But that requires a HUGE political battle (indeed, war) that no government has been or will be willing to undertake..
To go to court with this will only open a can of worms. Some christian churches requires a woman to not wear a pants and to cover her head, will that be change to allow freedom of religion
Would the ASJA denominational schools have allowed a woman in traditional hindu garb or a nuns habit or a jews shylock to teach or enter their school to teach? Most religions in trinidad are segregatory and non accepting of others. It would be interesting to know just how much these government assisted schools actually get from the government to give education to the country’s youth. And compare this to how much a government school gets. And i dont mean how much was allocated by the budget, but how much money was actually released. And it has to be valued education that these schools provide as many ppl prefer to send their kids to these schools. Schools which dictate the quality of their student intake based on SEA results. Laksmi girls form 1 intake must have students with more than 90 percent SEA results. Compare this with the form one intake of last year in the surrounding government schools of lakami girls. Similar trends may be see with the other board schools like saghs st joseph and presentation. Yet these schools have students and staff outside their teachings.
Wow this controversy look like when lights comes on n all roaches scatter
I am a bit concerned with the sentence which reads: ” 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 ones own choosing to be misleading. Her wearing of the hijab does not qualify her practicing a religion but following a way of life that she was raised under and without trying to sound authoritative he never said ” should not be tolerated” and who declares that his self opinion is intact correct. That is just one mans opinion who is quite capable to err and arrive at wrong decisions.
Remember he has to write something in a manner that will make his clients case sound sensible. It’s now up to the girls attorneys to argue otherwise.
You have the right to practice a religion but not when it conflicts with other rights and other religions. You countered your own argument when you said it is a way of life. If it has nothing to do with religion, as you just claimed, then she is clearly in the wrong.
Sadly, Lord Hoffman is right. You have the absolute right to BELIEVE in your religion, but not to manifest (express) it at any time or place. Not only because you ‘disrespect’ others, but generally to keep the peace.
If you can understand and appreciate satire, I suggest you watch a movie called “PK” which looks at all religions through the eyes of an ‘outsider’ who points out just how silly they all are.
I have read with great interest the ‘letter to the Attorney General’ especially when one of its possible authors is a former student of the College in which I spent all of my working life. (Tips his hat to Kiel Taklalsingh). I consider myself trained in analyzing language in its general usage and not by any means in its rather specialized usage in law. I am not going to analyze in any detail what I would describe as much ‘smoke’ and a few ‘mirrors’ contained in the quoted letter. Two examples would suffice.. one of ‘smoke’ – the references to what Ms Nakhid is alleged to have written on her social media accounts and two, the statement that ‘no one asked Ms Nakhid to remove her hijab’.. I would qualify this using the metaphor of a ‘mirror’.. it seems patently clear that the school administration citing the rules of the Maha Sabha Board said to Ms Nakhid that if she wished to remain on the compound (to take up her OJT appointment) she had to remove her hijab. Given that that was why she came to compound in the first place, isn’t that tantamount to saying ‘take off your hijab’ IF YOU WANT TO STAY HERE. I have capitalized the conditional clause because, all legal fancy footwork and posturing aside, that issue remains very clear to me.
The issue is two fold : do governing boards of denominational schools have the right to make rules which single out and exclude members of other religious groups from the precincts of their property merely from external signs of adherence to such groups? Is the school precinct (legally the property of the Board) a ‘private space’ in which any individual or group which owns such space can lay down such rules as it chooses? Or is it a ‘public space’ to which all individuals with legitimate purposes are entitled access? It should be pointed out that even in ‘public spaces’, the government has allowed to be formulated ‘dress codes’ (some details of which IMHO border on the ridiculous – sleeves on female garments and prohibition of shorts for males) which up to this point in time no one has challenged. Reference to other legal jurisdictions is again IMHO bluster – the Europeans particularly the French are adamant about keeping the ‘sacred’ and the ‘secular’ apart. I think the whole situation is calling for a judgement by the Equal Opportunity Commission who should be asked to determine if an individual right was infringed. I hope the issue will be grasped firmly and not end up being obfuscated by technicalities. I wish a sterling legal mind like our President’s were able to pronounce on it..
Mr Carter, I’ve read your comments with an unbiased mind and you’re making sense that a lot of us in Trinbago don’t have. Nevertheless, an issue relating to the Maha Saba (Satnarine Maharaj) is the kind that makes our politicians take cover. You saw how Kamla was humble in her response to his attack on her and the PNM’ s lukewarm approach to the matter. General election is just two years away; the Hindu votes matter a lot. We vote race and religion and Sat as foolish as he may seem, opened our eyes even though some of us know this. Respect! Your comment is edifying.
Albert Edwards thank you Mr Edwards! I am simply trying to cut through to the fundamental issues avoiding all the personal and emotional ‘smoke and mirrors’… it comes down to the right of an entity to create ‘rules’.. in what circumstances and are those rules fettered in any way?
William J Carter the Republic needs persons like you who speak because of logic and not politics and/or race. Blessings bro!
Just remember the law has already spoken when the parents of a Muslim girl took St. Joseph’s convent to court and won.
SecretAgent Myob It was Holy Name Convent.
Thank you for the correction.
I have read your comment in its entirety along with the comments that followed and I have only one thing to say, there is some disparity as to weather we can consider it a private or public space. Yes the school belongs to the sdms board and in that sense is private, however the school is largely funded by the government and the teaching staff falls under the ministry. The students of the school also fall under the purview of the ministry so during the normal operation of the school for the purpose outlined by the ministry, should it not be regulated by the rules of the ministry instead of the private board?
The SDMS is considered part of the private sector under the Equal Opportunities Act. The fact remains that Lakshmi High School (and some faith based schools) is not a religious shop but a place of employment to deliver a service of national education.
Any displeasure or grievance with an OJT ought to have been reported to the supervisor of the OJT and not to the OJT herself in this manner. The arrangement is between the govt and the service provider.
The service provider (Lakshmi Girls) in this case has discriminated against the Government and violated its trust by accepting its assistance in one instant and rejecting its assistance in another by interacting with the OJT on matters outside of performing the job. An objection ought to have been made with the Govt.
The SDMS ought to have been reasonable to provide the Govt and by extension the OJT by creating an opportunity to make adjustment for all parties to be successful.
The Board is not immune from one set of responsibilities that it ought to be following under the regulations of the constitution whilst enjoying other provisions.
Lakshmi Girls is a great institution and has a lot of great teachers. It ought not to be a place of vengeance to diminish the hard work put in by the staff.
“9. It is the desire of the Government that all teachers be trained at the teachers’
college under Government supervision and administration. Government will
however respect the rights of the existing training colleges conducted by the
denominations; but no expansion of those facilities will be allowed without the
expressed permission of Government.”
Was the OJT a teacher or not? If NO, then would the Concordat apply? If YES would section 9 apply?
Opposition Kamla who received SILK has made a weak move by not standing up especially for women. The Government cannot be weak and ought to stand up for its citizens like Kamla!
This racism thing is redundant. What if the relationship with ALL HIndu Schools (SDMS) are terminated just like UTT?
The Minister of Education and Culture wishes to clarify for general information some of the proposals on Education with reference to the re-organization of Education so far as those proposals affect the Denominational Boards of Management, the Governing Bodies and Principals of Assisted Secondary Schools.
1. In relation to property, the ownership and right of direct control and management of all denominational primary and secondary schools will be assured to the denominations in whatever modifications of the existing system that may subsequently be introduced in the New Education Ordinance, and all existing rights, so far as property is concerned, will be respected.
2. In denominational schools, no books or apparatus to which the denominational authority formally objects, will be introduced or imposed.
3. In denominational schools (unless the Denomination concerned otherwise gives its consent) the religion of the particular denomination which owns the school will be taught exclusively and by teachers professing to belong to that Denomination. In Government Schools all recognized religious denominations will have access through their accredited representatives during the times specified in the time-table for the teaching of Religion to the pupils belonging to their faith. Pupils attending the schools of a denomination not of their own faith will not be compelled to take part in the religious exercises or lessons of that denomination.
4. The right of appointment, retention, promotion, transfer and dismissal of teachers in Primary Schools will rest with the Public Service Commission. A teacher shall not be appointed to a school if the denominational board objects to such an appointment on moral or religious grounds. Similarly, if a teacher be found unsatisfactory on these very grounds, moral or religious, the denominational authority shall have the right to request his removal to another school after due investigation. For these reasons it is proposed (provided the legal and constitutional arrangements allow) “that vacancies as they occur in all schools should be advertised and applications submitted in the first instance to the respective Board of management which will examine them and forward them all, with their recommendations, to the Public Service Commission for final action.”
8. The selection of teachers for training at the teachers’ college is to remain solely with the Ministry of Education and Culture. Selection of teachers for training in the existing denominational training colleges may be made by the Denominational Boards, but such selection must be approved by the Ministry of Education and Culture.
I find it hard to believe that the SDMS General Secretary did not write this letter himself and require that the attorneys merely sign and send off on pain of instant dismissal.
In my view, it certainly does not read like a letter that an attorney worthy of the name would not baulk at affixing his name and/or stamp to.
The letter is well thought out, well written and clearly states what the law is. I doubt the SDMS head has the required legal knowhow to pen it himself, ergo, it was done by the lawyers.
Sadly, those who react from emotional views will not see the logic and law behind the position of the SDMS.
“In my view, it certainly does not read like a letter that an attorney worthy of the name would not baulk at affixing his name and/or stamp to.”
Just curious Earl, how does an attorney write or is meant to write?