Maha sabah VS Attorney General

THE TRINITY Cross — the nation’s highest award — is strictly a Christian symbol, and as a result, it discriminates in a multi-religious society that is Trinidad and Tobago, according to yesterday’s judgment by Justice Peter Jamadar.

However, the Order of the Trinity, is the law of the land, and the mere finding of it being discriminatory does not mean that the court can strike it down. It is a matter for the Parliament to change. This was the gist of Justice Jamadar’s judgment in the matter brought by the Sanatan Dharma Maha Sabha of Trinidad and Tobago, against the Attorney General.

The applicants in the case had challenged the constitutionality of the Trinity Cross on the grounds that its continued existence and award were in breach of the applicants’ fundamental rights as guaranteed by certain Sections of the Constitution.

They felt that the State’s highest national honorary award was discriminatory and unfair, in that Muslims and Hindus by virtue of their religious beliefs and experiences were unfairly and discriminately encumbered in their capacity to nominate persons for, be nominated for, or accept the honour, because of its Christian symbolism.

The following is the judgment handed down yesterday by Justice Peter Jamadar:

HCA No CvS 2065/2004 In the matter of the Constitution of Trinidad and Tobago and In the matter of The Guarantees of Fundamental Human Rights and Freedoms Pursuant to Section 14 of the Constitution and Order 55 of the Rules of the Supreme Court between Sanatan Dharma Maha Sabha of Trinidad and Tobago Inc Satnarayan Maharaj Islamic Relief Centre Limited Inshan Ishmael*Applicants and The Attorney General of Trinidad and Tobago*Respondent Before the Honourable Mr Justice P Jamadar APPEARANCES Dr E Ramsahoye QC, Mr J Horan and Mr A Ramlogan for the Applicants.

Mr R Martineau SC and Ms D Peake (now SC) for the Respondent JUDGMENT INTRODUCTION In 1962 Trinidad and Tobago attained Independence from England. No longer was Trinidad and Tobago a colony. However, Her Majesty the Queen of England remained Monarch.

By the Trinidad and Tobago (Constitution) Order in Council 1962, to which the 1962 Independence Constitution (the 1962 Constitution) was annexed and made operative (as from the 31st August 1962), Trinidad and Tobago was granted full responsibility for its own governance within the context of the Commonwealth (see the Trinidad and Tobago Independence Act, 1962). From that moment on, Trinidad and Tobago had independent responsibilities with respect to legislative powers and no laws of the United Kingdom passed after the 31st August 1962 would extend to Trinidad and Tobago as part of its laws. However, by section 22 of the 1962 Constitution the Parliament of the Independent Trinidad and Tobago consisted of Her Majesty, a Senate and a House of Representatives. And by section 56 of the 1962 Constitution the executive authority of Trinidad and Tobago was vested in Her Majesty and could be exercised on Her behalf by a Governor General. Further, the Governor General was appointed by Her Majesty and held office at Her Majesty’s pleasure and was Her Majesty’s representative in Trinidad and Tobago and the Commander in Chief of Trinidad and Tobago (section 19 of the 1962 Constitution).

Finally, by section 57 of the 1962 Constitution the establishment of a Cabinet was provided for, with responsibility for the control of the government of Trinidad and Tobago and with accountability for same to Parliament.

On the 26th August 1969 (with effect from the 30th August 1969) Her Majesty, Elizabeth The Second as Queen of Trinidad and Tobago, acting on the advice of the Cabinet of Trinidad and Tobago, issued Letters Patent establishing a society of honour in Trinidad and Tobago, to be known as the “Order of the Trinity” for the purpose of “according recognition to citizens of Trinidad and Tobago and other persons for distinguished or meritorious service or for gallantry.” Since the inception of the Order of the Trinity some thirty-five years have passed; and now a formal constitutional challenge has been raised against the highest honour that can be awarded under it: “The Trinity Cross.” For many years prior to this challenge murmurings have been sounded about the propriety of The Trinity Cross, in a multi-cultural and multi-religious society such as exists and has existed in Trinidad and Tobago since the time of its introduction in 1969.

Since 1976, with the introduction of the 1976 Republican Constitution (the 1976 Constitution) and the creation of the Republic of Trinidad and Tobago (by Act No 4 of 1976, the Constitution of the Republic of Trinidad and Tobago Act), the prerogatives and privileges formerly vested in Her Majesty were, as of the 1st August 1976, vested in the State (the Republic of Trinidad and Tobago) and, subject to the 1976 Constitution and any other law, the President (of the Republic) was given the power to exercise those prerogatives and privileges — section 6 (1) of Act 4 of 1976.

By the 1976 Constitution the President had become Head of State and Commander in Chief of the armed forces (section 22) and executive authority for Trinidad and Tobago had also been vested in the President. Thus, the President had generally replaced Her Majesty and Her Majesty’s appointee the Governor General in the roles they played under the 1962 constitutional arrangements that had previously existed in Trinidad and Tobago.

The Applicants in this case challenge the constitutionality of the Trinity Cross on the grounds that its continued existence and award are in breach of the Applicants’ fundamental rights as guaranteed by sections 4(b), 4(d) and 4(h) of the 1976 Constitution.

The Applicants argue that as a Hindu and a Muslim and as representative organisations of Hindus and Muslims existing in a multi-cultural and multi-religious society like Trinidad and Tobago, with its unique religious, cultural, historical and sociological antecedents, the continued existence and awarding of The Trinity Cross as the State’s highest national honorary award is discriminatory and unfair, in that Muslims and Hindus by virtue of their religious beliefs and discriminately encumbered in their capacity to nominate persons for, be nominated for or accept the honour, because of its clear and overt preferential recognition and representation of Christian symbolism, theology and values. It is essentially on these contentions that the arguments, of discrimination and inequality arise, both independently and in the context of the fundamental right to freedom of conscience and religious belief and observance.

STRUCTURE OF JUDGMENT 1. The religious, cultural, historical and sociological context (pages 5- 18).

• ‘Discovery’ and colonialisation.

• Christian exclusivity.

• Indian arrivals.

• Canadian Christian mission.

• Marginalisation.

2. The Trinity Cross (pages 18-42) • Recommendations.

• Description.

• Victoria Cross.

• George Cross.

• Contemporary considerations.

• Hindu perspectives.

• Islamic perspectives.

• The Applicants.

• de la Bastide Committee.

3. Entitlement to relief, 1976 Constitution (pages 42-46).

• Likelihood of contravention.

• Locus standi.

4. The equality provisions, 4(b) and 4(d), 1976 Constitution (pages 47-65).

• Legislation.

• Administrative action.

• Fairness.

5. Religious belief and observance, 4(b), 1976 Constitution (pages 65- 71).

• The American position.

• Secular State.

• State involvement in religion.

• Understanding 4(h) rights.

6. Synthesis/Application (pages 71-76).

7. Existing law, 6(1), 1976 Constitution (pages — 76-79).

8. Costs (page 80) 9. Disposition (page 80).

10. Appendices.

RELIGIOUS, CULTURAL, HISTORICAL, SOCIOLOGICAL CONTEXT.

And at the end of 17 days, during which the Lord granted me a favourable wind, on Tuesday July 31, at noon, land presented itself to our gaze. I had expected this the Monday before and had held the course up to this point, but as the fierceness of the sun increased and our supply of water was failing, I resolved to make for the Carib Islands, and I set sail in that direction.

And as the Lord on high has always shown mercy to me, one of the sailors, a seaman from Huelva, my servant, named Alonso Perez, saw a range of three mountains to the westward, about 15 leagues distant .

. . Whereupon there was great joy and merriment, and we recited the Salve Regina and gave thanks to the Lord.

Ship’s log entry by Christopher Columbus, 31st July, 1498.

The respected and reputable historians Michael Anthony, Gerard Besson and Bridget Brereton note (see First in Trinidad, 2nd Ed; Historical Dictionary of Trinidad and Tobago, 1997 and The Book of Trinidad, 3rd Ed, at pages 21, 160 and 11 respectively), that Columbus on seeing this land remembered his vow on leaving the Spanish after the Blessed Trinity (“la santissima Trinidad”), the three persons in One God according to the Roman Catholic faith . . . to whom he had dedicated this his third voyage to “the Indians” (the West Indies) and cried out “La Trinidad!” The island was thus named “Trinidad” after the Holy Trinity of the Roman Catholic (Christian) religion.

From the 31st July 1498 until Capitulation on the 18th February 1797 (by “His Catholic Majesty” — the Spanish King to “His Britannic Majesty” — the British King) Trinidad was a Spanish Catholic colony.

One of the motives for the exploration of the New World by Columbus and catholic colonisers was the extension of Christendom. In 1492, Columbus writing to King Ferdinand and Queen Isabella stated: Your Highness ought not to consent that any foreigner do business or set foot there, except Christian Catholics, since this was the end and the beginning of the enterprise, that it should be for the enhancement and glory of the Christian religion, nor should anyone who is not a good Christian come to these parts.

[See, Sources of West Indian History, by F R Augier and S C Gordon, at page 89].

This religious exclusivity was not limited to would be settlers but extended to all inhabitants: enslaved indigenous Indians (Amerindians) were converted to Christianity. To quote from Acosta’s History of the Indies, 1604: “Yet God of his bounty . . . has made the subjection of the Indians, a perfect remedy for their salvation.” The position with respect to Trinidad is documented in The Royal Cedula on Colonisation given on the 24th November 1783 by the Spanish King, whereby in establishing the underlying policy for settlement and commerce in Trinidad it was stated: Article 1st. All foreigners, the subjects of powers and nations in alliance with me, who are desirous of establishing themselves, or who are already settled in, the said Island of Trinidad, shall sufficiently prove to the Government thereof, that they are of the Roman Catholic persuasion, without which they shall not be allowed, to settle in the same; but the subjects of these my dominions, or those of the Indies, shall not be obliged to adduce such proof, because no doubt can arise as to their religion.

Thus, for 300 years Trinidad was an exclusive Christian Roman Catholic colony, with an overt policy of Christian religious exclusivism, and the origins of that policy can be traced to the first sighting of the island on the 31st July 1498.

With Capitulation this religious exclusivity changed. By Article 11 of the Articles of Capitulation, signed on the Island of Trinidad on the 18th February 1797, it was declared that: “The free exercise of their religion is allowed to the inhabitants.” Of course all inhabitants of the Island had to swear allegiance to the King of England “upon pain in case of non-compliance of being sent away from the Island” (Article 15). And of course this free exercise of religion was in the context of a transfer of power from Roman Catholicism to Anglicanism (English Catholicism). Practically therefore Trinidad remained a Christian Colony. In fact the official British policy was that only Governors and councillors must be members of the Church of England. Governors were instructed that they should “in no other case suffer any man to be molested or disquieted in the exercise of his religion; only we oblige you in your own house to the possession of the Protestant religion, according as it is here practiced by us in England, and the recommending it to all others under your command.” [See Augier and Gordon, supra at page 91].

It may thus be fair to say, that with and following Capitulation, the official policy on religion in Trinidad shifted from one of insistence to one of persuasion — in the context of Christian pluralism. But it is also clear that governance and privilege remained linked with adherence to the “acceptable” Christian religious traditions.

Thus, though there was tolerance as among Spanish and French Roman Catholic Christians and the British and Dutch Protestant Christians, the attitude to non- Christian beliefs was quite different.

As is pointed out in the General History of the Caribbean, Vol III . . .

The Slave Societies of the Caribbean (Ed F W Knight), in the section entitled “Colonial state churches and religions conformity” (at page 293): The centrally important feature of the slave workers’ new religious setting, however, was consistent throughout the Caribbean: non- Christian beliefs and practices were outlawed and practitioners punished with torture, transportation and death.

This then was the general religious context in Trinidad, from the time Columbus claimed the island, to the abolition of slavery in 1834 in the British Empire (by the Abolition Act, 1834, UK; proclaimed in Trinidad in 1838).

African slavery really started in Trinidad with the Cedula of Population in 1783. Before that there were only a few people of African descent, the majority of the population being Amerindians along with Spanish settlers. By 1797, when Trinidad was conquered by the British, there were about 10,000 African slaves. However, between 1797 and 1806, under British rule, the slave population rose to about 20,000. In 1806 the slave trade to Trinidad (one of the ‘newly acquired colonies’) was prohibited. By 1834 when slavery was abolished, Trinidad had become a slave colony and African slaves constituted the majority of her population. It is to be noted that though 1834 marked the formal end of slavery, former slaves were not ‘fully free,’ as all salves (over six years) had to be ‘apprenticed’ to their former owners and had to work forty-five hours a week unpaid. This apprenticeship scheme was only abolished on the 1st August 1838, when full freedom was granted to all former slaves — Emancipation. [See Besson and Brereton, supra at page 99].

a matter of public record, indisputable and well known. It forms parts of the notorious local history of Trinidad. The following information has been recorded by many historians and analysts; including Professor Brinsley Samaroo (eg In India in the Caribbean and Pioneer Presbyterians.

Origins of Presbyterian Work in Trinidad); Isaac Dookeran (eg in A Post Emancipation History of the West Indies); Idris Hamid (eg in a History of the Presbyterian Church in Trinidad, 1808-1968); and Professor John La Guerre (eg in Calcutta to Caroni, The East Indians of Trinidad)].

It is into this historical, religious, ethnic and sociological context that East Indians (from India) arrived in Trinidad under the Indentureship System.

Prior to the abolition of slavery and the introduction of the farcical apprenticeship system, Trinidad had become a plantation economy based on the production of export crops, ‘King Sugar’ and cocoa being the main exports.

African slave labour was the underlying basis of the island’s social and economic structure, both of these export crops being heavily labour dependent.

It was not surprising that in the ten years prior to abolition, the planters in Trinidad passionately resisted the movement towards abolition.

Abolition was seen as the death of their income and the island’s economy.

It was also against this background of protest and need, especially with the failure of the apprenticeship system and with the Emancipation of former slaves and with the general reluctance of the ex-slaves to remain or work on the plantations, that alternative sources of labour, cheap labour, had to be found if the island’s plantation economies were to be sustained and economic disaster averted.

This was the general economic context in which indentured immigrant labour was introduced into the British West Indian colonies (including Trinidad) in the post Emancipation era.

The first East Indian immigrant ship, The Fatal Razack, left Calcutta in February 1845 and arrived in Trinidad on the 30th May 1845. There were two hundred and twenty-seven East Indian immigrants on board — men, women and children.

This was the beginning of the indentured labour system in Trinidad. It continued until 1917, by which time some 143,939 Indian immigrants had arrived in Trinidad.

Though the indentured immigrants (after which they could return to their land of origin), the vast majority stayed. In Trinidad some 110,645 Indian immigrants remained, most of whom continued to reside and work on the plantation estates.

Given that the vast majority of East Indians who came to Trinidad during the period of indentureship were of the Hindu and Muslim religions, their proportion to the overall population is important to understanding the relevant context in which the Applicants’ arguments are based.

By 1871 there were over 27,000 East Indian immigrants out of a total population 110,000 in Trinidad (ie about 25% of total population).

The following table illustrates the ratios between East Indians and the total population in Trinidad over time.

YEAR NO EAST INDIANS TOTAL POPULATION PERCENTAGE OF TOTALPOPULATION (1871) 27,000 110,000 25 1946 195,747 556,931 35 1960 301,946 819,362 37 1970 373,538 923,552 40 The population statistics published by the Government Central Statistical Office for 2002 show that people of East Indian descent made up 40.3 and 40 percent of the population in the years 1990 and 2000 respectively.

This publication also demonstrates that for the years 1990 and 2000 about 24 percent of the population were Hindus and 6 percent Muslims (that is, at total of about 30 percent of the population). It also appears that for these two periods, the total Christian population (Roman Catholics, Anglicans and Presbyterians) was 44 percent of the total population.

What was the attitude of the governing agencies towards the non-Christian population in Trinidad and in particular towards the Hindus and Muslims? In fact, all immigrants who replaced the ex slaves on the plantations fell onto the lowest rung of the social ladder.

Professor Samaroo describes “the lot of the East Indian Immigrant” as follows: exploited by the plantation owners and neglected by the Government and the African resented the indentured Indian because his arrival on the labour scene destroyed the African’s chance of obtaining higher wages. East Indians were further despised as being inferior in physical strength and were also seen as the new slaves who were forced to carry a pass-book.

Other sections of the population also had anti-Indian feelings.

/some saw the East Indians as ‘semi-barbarians’ with a tendency to be ‘unruly and riotous’. Even Lord Harris gave his view of the last Indians whom he thought were hardly different from the exslaves; “They are not, neither coolies or Africans, fit to be in a position which the labourers of civilised countries must at once occupy.

They must be treated like children, and wayward ones too; the former from their habits and religion; the latter from the utterly savage state in which they arrive.” Thus large sections of the community rejected the East Indians because of physical, social, religious and cultural differences.

Mutual distrust existed between Africans and East Indians. The Indians reciprocated by not participating fully in the society.

Besides regarding the African as being not so highly civilised as himself, his religion and customs afforded a certain degree of exclusiveness.

Many of them felt a “social and religious reluctance to have their children educated with those of a different faith and different race.” Therefore in 1865, twenty years after their first arrival, and with a population of more than 20,000 or 25 percent of the total population, not more than twenty Indian children were to be found in the public schools of the island.

(In Professor Samaroo’s Pioneer Presbyterians at pages 7- 8). The non Christian, East Indian immigrant labourer experienced alienation and marginalisation in Trinidad, based not only on class (labourers on the plantations) but also because of culture and religion.

Placed in an entirely new context, predominantly Euro-centric (which meant christo-centric) with traces of an Afro-centric nature, the indentured Indians strived to preserve and practice their religious beliefs and observances, use their home languages, dress, food and maintain their culture and traditions.

That is, the Indian immigrants sought to retain their identities (see, Professor Samaroo, India in the Caribbean, at page 46). This choice to preserve identity and this resistance to change and to the assimilation of the dominant customs and values set the East Indian immigrants apart from the rest of the society, a separation that cannot be de-linked from the tensions that existed between the dominant Christian religion and the ‘newly arrived’ Hindu and Muslin religions.

With the introduction of the Canadian Presbyterian Mission into Trinidad, which targeted predominantly the East Indian immigrant population, the alienation and marginalisation of the non- Christian East Indian immigrants suffered a further complication.

In 1846 John Morton visited Trinidad to recover from an illness.

He was from Nova Scotia, Canada and was the pioneer missionary to the East Indians of the Canadian Presbyterian Church in Trinidad.

As Idris Hamid points out in ‘A History of the Presbyterian Church in Trinidad’ (quoting from the book ‘John Morton in Trinidad,’ by S E Mortin (his wife), 1916 pages 7 and 8), in reference to the East Indian Immigrant in Trinidad: The overriding concern of John Morton was: (i) The burden of ...those 20,000 heathen people, brought into a Christian country, and none to care for their souls. “To think,” he would say, “of those people living in a Chrtistian community for years, making money, and returning to India without hearing the Gospel of Christ! What a stain on our Christianity.” (ii) “Christianising the mass of imported heathenism.” (iii) “That those (Hindus and Muslims) be saved from their dark idolatory or Mohammedan delusion.” It is indisputable that the generally prevailing attitude of the governing class in Trinidad was that Trinidad was a ‘Christian’ country and that ‘non’Christians,’ certainly Hindus and Muslims, were by reason of their religions, ‘hethens,’ ‘idolaters,’ ‘deluded’-inferior in a significant way and so ‘less than’ Christians.

Professor Samaroo, in ‘The Presbyterian Canadian Mission as an agent of integration in Trinidad,’ 1972 (at page 10), citing Morton 1917, supra at page 232, makes the following observation: Even if the East Indians were fellow Aryans, they had in the opinion of the missionaries, strayed from the path of civilisation.

To Morton they were worshipers of false gods: “The character of these decotas (gods) is felt to be a most vulnerable point.

Brama was a liar, Vishnu an adulterer, Shiva a drunkard, Krishna shameless...While the character of Christ is our strong point.’Ironically, this preferential/ discriminatory attitude by the governing class in Trinidad, based on religion, was contrary to the attitude of the founder of Christianity, Jesus, whose life was a critique of religious exclusivity and discrimination.

However, this preferential/discriminatory attitude is important to note because it forms part of the collective ‘ancient memory’ and psychological context of Hindus and Muslims in Trinidad and Tobago even today.

It is now also beyond dispute that the indenture system was really one of semi-slavery (see, for example, Dr Eric Williams, History of the People of Trinidad and Tobago, at pages 105-106; and Idris Hamid, supra, at pages 43-46).

What the whip was to slavery “jail and the asylum” were to indentureship (Idris Hamidm supra at page 45).

The general alienation of and indifference to the East Indian indentured worker in relation to the rest of the society in Trinidad, is illustrated in the attitude of the governing class and of the State to their education.

Dr Eric Williams noted, in this regard: The worst victims of colonialism in this respect (education) were the children of the indentured immigrants. Until the arrival of the Canadian Mission to the Indians in the 1860s no attention was paid to them at all...

(History of the People of Trinidad and Tobago, at page 211) And, the Keenan Report of 1869 records in relation to the East Indian indentured immigrants: Their moral and intellectual necessities were overlooked. The coolie’s mind was left a blank. No effort was made to induce him, through the awakening intelligence and dawning prospects of his children, to associate the fortune or the future of his family with the colony. It is therefore, that..collaterally, and I believe legitimately I connect the magnitude of the periodical exodus of the Asiatics with the education system, which fails to provide for their children acceptable schools.

I cannot call to mind any other case of a people who, having voluntarily come to a strange land which they enriched by their labour, were morally and intellectually — so completely neglected as the coolies have been during the past twenty-four years.

(In Idris Hamid’s, A History of the Presbyterian Church in Trinidad, supra, at page 64).

Education was used by the Canadian Mission as a vehicle for evangelism. As such its success may have been significant. But it was at a cost in terms of creating a pervasive attitude of suspicion, if not resentment, among East Indian Hindus and Muslims who valued their ‘non-Christian’ religious beliefs and observances (see, The Presbyterian Canadian Mission as an agent of integration in Trinidad; during the 19th and early 20th Centuries, 1972 by Professor Brinsley Samaroo, at page 17). Indeed, Professor Samaroo points out (supra): (i) “They (Hindus and Muslims) often opposed the missionaries evangelisation efforts...”and (ii) “Some Hindus resented the fact that other East Indians had become Christians and they showed this by preventing Christian East Indians from attending, Hindu Religious ceremonies.” Hindu and Muslim families were thus divided, when their children who attended the Canadian Mission Schools choose to ‘become Christians’ against the wishes of their families and communities (see, Morton Klass, East Indians in Trinidad: a study of cultural persistence, at page 4). As Professor Samaroo points out (in Pioneer Presbyterians origins of Presbyterian Work in Trinidad, at page 24): The conversion of Hindus and Muslims led to a certain amount of disintegration in the society. In order to secure jobs many had to accept baptism and this often led to a schizophrenic personality.

This was a situation created by the Church and which has been handed down to our generation (in the 1990s).

Today it is still a problem..and it is creating many unpleasant relationships.

Professort Samaroo makes a similar observation in The Presbyterian Canadian Mission as an agent of integration in Trinidad, supra, at page 24, when he states: The Canadian Mission to the East Indians...possibly believing that the controlling hand of the British would be there for all time, seems not to have envisaged the day when the country would be under the control of Africans and East Indians.

Hence they saw nothing wrong with the racial separation that existed and indeed did much to preserve this.

In doing so, they re-enforced the exclusiveness of the East Indian whose distinctive way of life made separation a natural phenomenon.

From the mid-20th century this separation was destined to bedevil the fortunes of an emerging Trinidad and Tobago.