Man with Muslim wear put out of court

In what is expected to be a historic judgement, the Court of Appeal will have to decide whether a magistrate has power to order someone wearing  religious headwear to remove the headwear or leave the court; and even if the magistrate  has such powers, whether an inquiry should be held  as to the reason of the headwear before making such an order.

This was among some of the arguments raised by attorney Sunil Gopual-Gosine in the Court of Appeal last Friday, as he argued the appeal of  Olive Enya Hooma-El, who was ordered out of the Arima Magistrates’ Court by then senior Magistrate Herbert Charles for wearing his Muslim headwear called a tahj, 16 years ago. Hooma-El, whose address was given as 1 Dere Street, Port-of-Spain, was seated in the Arima court on September 8, 1988 when the police court prosecutor ordered all those present in court and wearing hats or other headwear to remove them or leave the courtroom. He repeated the order a few times as did other police officers present.

According to the State’s case, Hooma El did not remove his tahj and Magistrate Charles announced that he noticed a man at the back of the court who remained seated wearing headwear. Charles further announced that as presiding magistrate the man is ordered to leave the court as previously requested by the police officers. Hooma El then left the court. Hooma-El  later filed a constitutional motion against Charles, alleging among other things that his constitutional right  to freedom of conscience, religious beliefs and observance as guaranteed in Section 4, 8 of the Constitution was infringed and also his right to equality of treatment and the protection of the law.

The motion was heard before Justice Joseph Tam whose judgement of July 31, 2002, dismissed  Hooma-El’s claims. Hooma-El had told the judge that he had explained to the magistrate that what he was wearing was not a hat but a tahj which constituted part of his religious garment. But Charles said that was not true. Hooma-El simply got up and left the court without a reply. Tam’s ruling was based on the fact that Hooma El did not indicate the reason for the tahj to the magistrate and accepted the State’s  case, indicating that in those circumstances the onus was on  Hooma-El to inform Charles of the significance of the tahj. Hooma El appealed, and  the matter came up before Chief Justice Sat Sharma and Justices Margot Warner and Rolston Nelson.

On appeal, Gosine contended  that notwithstanding the finding of fact by Justice Tam,  the magistrate ought to have held an inquiry before making his order to find out from Hooma El the significance of the headwear. He said the right to an inquiry came about as a result of compliance with the rule of natural justice and also under Section (5) (2) H of the Constitution which says that the State ought to implement the necessary procedural provision to give effect to a person constitutional rights — a right to be heard. Gosine argued that in a multi-religious society such as ours,  persons would be present in the public gallery of the courts wearing religious headwear and that there was a duty imposed on  magistrates to ensure that orders were not given to those people  to either remove their headwear or leave the court.  If that is done,  it can contravene a person’s  right to freedom to manifestly express their religious beliefs and observances which are guaranteed under the Constitution.

He further argued that the magistrate did not have any authority in law or, there was no existing law which gave him the jurisdiction to make such an order. He observed that magistrates are creatures of statute, therefore there must be an existing law for a magistrate to expel a person from the public gallery of the court on the basis of clothing. He insisted that the onus was on the State to show that there is an existing law. He noted that this was not a case of someone disturbing the function of the court where there are  laws to deal with such behaviour. Gosine, who was instructed by attorney Alvin Ramroop from the lawfirm of Daltons,  said the  decision of the magistrate was arbitrary and because of this, it amounted to an inequality of treatment.

Gosine recalled that women were permitted to wear headwear in court and that Charles had agreed at the trial stage that Baptist women were allowed to wear their headwrap while East Indian women were permitted to keep on their orini  in court.  He even admitted that police officers were allowed to keep on their hats. Therefore, argued Gosine, if women and police are allowed their headwear and not Hooma-El, it amounted to an infringement of  Hooma-El’s right to freedom of religious beliefs and observance. Gosine submitted that the case was one of great constitutional importance since there are not many cases on the issue of freedom of religious beliefs and observance. Deputy State Solicitor Krishendeo Narine explained that he was relying on Justice Tam’s finding at the trial and further contended that Hooma-El was not entitled to an inquiry. The Court reserved judgement to a date to be fixed.