The Right To Freedom Of Religion: A Critical Examination Of The Amasa Firdaus’ Hijab Case

This was the case of Amasa Firdaus, a female Muslim law student who was refused into the International Conference Centre for failing to heed to the instructions given by the Law School authorities. According to the report published by TheNigerialawyer, the student from the University of Ilorin had insisted on wearing her wig on top of her hijab as she was already dressed in her new gown. She vehemently objected to abide by the rules boastfully, claiming that the refusal by the authorities of the Nigerian Law School on that ground amounts to a violation of her right to freedom of thought, conscience and religion enshrined in section 38 of the 1999 constitution as amended. The scenario which has also drawn the attention of BBC triggered many arguments for and against the action of those who refused the young lady to be called. But on this end, what is this writer’s opinion? Before going through with this discourse, let it be borne in mind that this remains the opinion of the writer and should not be in anyway misinterpreted. This appeal is made with good conscience because religious matters are very delicate and should be handled with care. We will start by looking at the section that provides for the right to freedom of religion. Being a section found in the grundnorm, it suffices as a maximum authority with or without a case law. So much emphasis will be hammered on the Constitution with little or no secondary source. The section provides thus:

38. (1) Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance.

(2) No person attending any place of education shall be required to receive religious instruction or to take part in or attend any religious ceremony or observance if such instruction ceremony or Observance relates to a religion other than his own, or religion not approved by his parent or guardian. (3) No religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in any place of education maintained wholly by that community or denomination. (4) Nothing in this section shall entitle any person to form, take part in the activity or be a member of a secret society. A closer look at this section of the Constitution shows that everyone has the right to freedom of thought, conscience and religion. Also, no one should be forced to partake in any religious activity against his or her faith in a place of Education and no religious gathering is to be prevented from providing religious instructions for pupils of such a gathering in any place of education maintained by the gathering (community or denomination). From the foregoing, whilst S. 38 (1) stipulates the right as it is, S. 38 (2) indirectly spells out a negative duty of “Do not”. Specifically, S. 38 (2) which speaks of an indirect negative duty placed on a person or group of persons as the case may be, not to give any form of instruction or observance forcibly to any person against his or her will must as a matter of law be religious. In other words, except such an instruction is religious, it cannot be said to have violated section 38 (2) even if it remains an instruction. This is the spirit of subsection two. However, an instruction may not be religious and yet violate the right as stated in S. 38. But the subsection under purview is made  with a qualification: “religious”. Let us see the subsection for emphasis purpose: (2) No person attending any place of education shall be required to receive religious instruction or to take part in or attend any religious ceremony or observance if such instruction ceremony or observance relates to a religion other than his own, or religion not approved by his parent or guardian. For this discourse, subsection 1 and 2 are more relevant. Sub-section 1, 2 and 3 stipulate and forward the right while for an exception, sub-section 4 operates as the only subsection so far as the wordings of section 38 is concerned. To this writer, S. 38 (4) is more of a prohibitive section than an exception. This is because the activities of a secret cult society are not regarded as religion activities. It does not fall into religious activity and so not a restriction but a prohibition subsection unlike other exceptions that carry a restrictive language. For instance, you hear the constitution telling a citizen that he or she has the right to freedom of movement, yet it restricts it by saying something like this: “Nothing invalidates a law that …”. This way, movement is only restricted and not prohibited. This is different from when the constitution says “you have the right to freedom of religion” and in another part “you are not entitled to take part in a secret court activity”. Thus, secret cult activity is no religious activity of a religious gathering in the eyes of the law. This way, it seems to look as if the right to freedom of religious carries an absolute outlook after the right to fair hearing, since what looks like the exception to the right to freedom of religion is prohibitive and not restrictive. Though it can also be argued that some persons can consider an activity as a religious activity, yet in the eye of the law it is not, just as it can be argued in the case of Registered Trustees of Amorc v. Awoniyi (1994) LPELR – SC. 23/1991 However the Supreme Court did not give a definition of what a religious organization is in the said case. Having stated this, let us consider the issues at hand? Does Amasa Firdaus have the right to freedom of religion? The answer will definitely be in the affirmative. Secondly, was her right to the said freedom breached? That is where the writer will deviate. The answer is a capital NO. The reason will be the same reason the writer gave when he wrote a rejoinder to the article written by Seun Lari Williams titled: THE RIGHT TO FREEDOM OF ASSOCIATION AND THE NBA. To understand better the reasons, readers are advised to read the said rejoinder for proper evaluation. However for adequate digestion, let us consider these:

1. An instruction was given to Amasa Firdaus which is more of the conventional code of regulation wear of the Nigerian Law School.
2. This instruction was not and is not religious; it is rather the ethos and etiquette of the profession.
3. The instruction for female is as follows:

“Black suit, white shirt (there should be no frills, embroidery and/or trimmings of any type), black skirt (below the knee), black covered shoes (sandals, lace ups or peeps toes are not allowed). Only moderate jewelry should be worn. (No large dangling or coloured earrings, or bracelets are allowed). Also, hair attachments, weave on glitters or colouring of any type in the hair is prohibited. During this exercise, your facial features, including your ears must be exposed for capturing. This is also applicable to all our females Muslim students wearing the Hijab”.  Based on this, an excerpt of the argument in the rejoinder will be given to ride home the writer’s point. Although, the argument was against the mandatory concept debate of the NBA, it is argued that argument given below hits the icicle.   “Yes, the mandatory concept has been introduced by the Law and has been argued by my learned friend to have violated the right to freedom of association. But I think the interpretation is the way it is, because ‘mandatory’ has been construed to be ‘forceful membership’, even though learned counsel did not make use of the term. But what if the argument is thrown the other way round? No one is forced to join the NBA as no one is forced to be a Lawyer. The mandatory nature of the association at least for legal practitioners, is open and well spelt out for those who intend becoming legal practitioners even before they choose the profession. Thus, anyone who joins the legal profession by being educated by the Council of Legal Education and called to the Nigerian Bar by the Nigerian Body of Benchers, having being aware that such move would result to him becoming a member of the association which is mandatory in this context, has simply given his consent. In other words, going to Law school and passing the bar exams and called to the Nigerian Bar is an express exercise of the right to the freedom of Association as no one is not forced to join the Association. Only that failure to join means that, his or her legal practice would be barred and so it is a matter of choice to join or not to and for emphasize purpose, acceptance to join the profession is an exercise of the right to join the association, just as the requirement to join the NBA is qualification as a legal practitioner. Put another way, can someone who has been refused membership to the NBA for not being a legal practitioner turn around to say that his right to freedom of association has been breached? If no, then the same way he cannot claim that his right to freedom of association is violated for being denied membership for lack of qualification, so also he or she cannot claim that his or her right to freedom of association has been breached by joining the NBA mandatorily upon being enrolled as a legal practitioner; just as the presidential aspirant of an election cannot claim that his right to freedom of association has been breached because of his compulsory membership of a political party. By agreeing to contest, he has simply agreed to be a member of a political party, which is an exercise of the right itself. It should be worthy of note, that even the exceptions in S. 45 (1) deals with ‘prohibitions’.” Another excerpt of the argument also states as follows: Can a Boxer who gets himself punched to stupor by another boxer turn around to say that he or she was subjected to torture and as such his or her right to dignity has been breached? Under the Tort Law remedy of Battery, the said hypothetical Act would amount to the defence of ‘Consent’. But can the aggrieved boxer who consented turn around and argue in court that his right is breached because the constitution did not create an exception known as ‘consent’ in Section 34 or any other section? That is left for the court to decide as to what really is the interpretation of the right.

1. 41 deals with the right to freedom of movement. Can a student who is in a University who has been admitted into the school whose regulation prohibits students from leaving the Hostel by 12:00 am in the night turn around to say that his right to freedom of movement has been breached despite consenting via acceptance of the admission from the school? Can he succeed because S. 41 did not create such as situation as an exception, neither does any other section in the constitution make a trace to it? That will be left for the court to say.

The above was part of the argument given in the rejoinder spoken about. The whole gist points out to one thing: Volenti non fit injuria, put in other words, CONSENT. Not long after the rejoinder, the court of appeal affirms the automatic membership of a legal practitioner upon enrolment in the Supreme Court of Nigeria in the recent case of NBA v. Kehinde (2017) 11 NWLR (PT 1576) 225 at 250 – 251 paras H-A, despite receiving much criticism from the lawyers in the legal community. Well, criticism is a necessity. A writer afraid of criticism should as well be afraid of writing; for writing is criticism and criticism is writing. To rephrase, was Amasa Firdaus aware of the instructions given? The answer is yes, she is aware impliedly. This is because she is not the first Muslim to be called to the Nigerian Bar and accepted to attend an institution with an instruction against her belief. Although, it is true that this is not the first time such a scenario has ever occurred, the fact remains that it is implied that she knows that such an instruction exists. Now the simple logic is that though, Amasa Firdaus has her right to observe her religious beliefs as affirmed in the case of Provost, Kwara State COE, Ilorin & 2 Ors v. Bashirat Saliu & 2 ors Appeal No CA/Il/49/2016, her acceptance to join the legal profession being aware that such rules exist amounts to her consenting, and exercising her right to freedom of association as well and as such she cannot say that her right to freedom of religion has been violated. In safeguarding this exception, it has been argued elsewhere using the traceability principles that NOT ALL EXCEPTIONS ARE TRACEABLE TO A SECTION STATING THE GENERAL RULE; also not ALL EXCEPTIONS TO THE GENERAL PROVISION IN A CONSTITUTION ARE FOUND EXPRESSLY IN THE CONSTITUTION. For extensive discuss see “THE RIGHT TO FREEDOM OF ASSOCIATION AND THE NBA – A REJOINDER by Ebi Robert” and published by TheNigeriaLawyer. Thus it is the writer’s submission on this part that the right to freedom of religion is never breached when the said person impliedly consents. Hence, it must be noted that no right was breached. However, whether or not the right was breached, it must be emphasized that the Law is dynamic and must meet up with world standards. Sometimes in 2013, TheScoopNG reported similar issue where some group of female Muslim law students argued against the authorities that they cannot expose their ear lobes. The matter resulted to a petition in the Nigerian law School. Others have also made reference to what is obtainable other jurisdictions where rules have been amended or made to fit into the respect of the faith of the Muslims. Pretty sounding that the said instruction is not a constitutional requirement, it is only advisable that this said conventional rule be rested or re-visited to satisfy the religious faith of the Muslims. This is one nature of the law; that it is dynamic. Though others may argue that not every protest should amount to an unnecessary pressure to bend the law, the writer is emphatic on the opinion that religious matters are delicate and should be treated with care. It is not to be rushed else it results to something that will make the law look stupid. Nevertheless, in all things, the right of Amasa Firdaus was never breached, at least so far as the current position of the law is concerned. TheNigerialawyer Editorial]]>