'...even though the Hon. Court stated that the child was not sentenced to the institution, the Court has a duty to consider the stigma that would be attached to the child if she were sent to the institution.'
---Attorney General Doodnauth Singh, who is moving to have the judge's order deemed 'unconstitutional'
THIS morning Justice Yonette Cummings-Edwards will hear a
Constitutional motion by Attorney General Mr. Doodnauth Singh, Senior Council (SC), which motion seeks to knock down the habeas corpus order handed down by Justice Beasraj S. Roy in the matter of Bibi Natalia Hamid, 13.
The Attorney General is seeking the following Orders:-
(a) A Conservatory Order staying the execution of the Order of Honourable Mr. Justice B.S. Roy dated 11th day of June, 2004 in the matter of an application for a writ of Habeas Corpus
Ad Subjiciendum Action No. 71-M of 2004.
(b) A declaration that the Order of Honourable Mr. Justice B.S. Roy made on the 11th day of June is unconstitutional, null and void.
(c) Such further or other Order as the Court deems just.
In his affidavit in support of the motion, the Attorney General said that on the May 18, 2004, Ms. Bibi Shameeza Hamid represented by attorneys-at-law Mr. Nigel Hughes, Mr. Andrew Pollard and Ms. Priya Manickchand filed habeas corpus proceedings in the High Court in action No. 71-M of 2004. The Notice of Motion was directed to the Minister of Human Services and Mr. Reeaz Khan to have the body of one Bibi Natalia Hamid produced before the Honourable Court.
The said matter came up for hearing on May 20, 2004 when the child, Bibi Natalia Hamid, was produced by Mr. Reeaz Khan. An application was made and leave was granted to the Honourable Minister of Human Services to file an Affidavit in Answer.
It was further ordered that the child be placed in the custody of her mother Bibi Shameeza and the mother's sister, who resided at 37 South Section, Canal No. 2 Polder, until further ordered. A Probation Report was also ordered to be laid over to the Honourable Court. The matter was made returnable on June 4, 2004.
An affidavit in answer was filed on behalf of the Minister of Human Services with a copy of the Probation Report attached on June 4, 2004.
That on June 7 2004, the date returnable to the Honourable Court it was brought to the attention of the Court by Mr. Nigel Hughes, for the applicant that the said child Bibi Natalia Hamid had left the home of her aunt and could not be found. The Hon. B.S. Roy in Chambers then requested assistance in locating the said child from the Guyana Police Force. The matter was then adjourned for report on June 7 2004
That on June 7 2004, the child Bibi Natalia Hamid presented herself in the company of her attorney-at-law Ms. Carol Martindale Howard before the Honourable Court. In open Court, Honouable Mr. Justice B.S.Roy after hearing submissions on behalf of the applicant through Mr Hughes and Counsel for the Minister of Human Services, requested to hear from Ms. Martindale Howard as an officer of the Court as to her position in the matter and she informed the Court as regards a petition for marriage that was filed therein on the 7th day of June, 2004 before the Chief Justice.
Futher, the Hon. Mr. Justice B.S. Roy never invited Ms. Martindale Howard to make representations on behalf of the child Bibi Natalia Hamid in the habeas corpus proceedings before the Honourable Court. The matter was then adjourned to Chambers and Ms. Martindale Howard was not invited to participate in those proceedings despite open invitations to various interest groups including Red Thread, and a Caribbean women's rights group among several others.
During deliberations within Chambers and after hearing Mr. Hughes on behalf of the applicant, representatives of the referred interest groups, the Guyana Police Force and a representative of the Probation Department of the Ministry of Human Services, the Honourable Mr. Justice B.S. Roy was presented with an option of sending the child Bibi Natalia Hamid, to the New Opportunity Corps, Onderneeming, Essequibo.
Continuing, in support of his motion, the AG stated: "On the 10th day of June, 2004, I applied for leave to intervene in the said habeas corpus proceedings and was so granted by the judge. I made submissions to the Honourable Court that there was no jurisdiction to send the said child, Bibi Natalia Hamid, to the New Opportunity Corps in addition to the fact that no proper facilities are available for the said child and suggested alternative homes namely the Genesis Home and the Shaheed Girls Orphanage in which the child may be placed. Further it was submitted that even though the Hon. Court stated that the child was not sentenced to the institution, the Court has a duty to consider the stigma that would be attached to the child if she were sent to the institution.
The Attorney General added that on the 11th day of June 2004, Mr. Hughes submitted that the Hon. Court has jurisdiction and power to send the child to the New Opportunity Corps. I reiterated my submissions that the Hon. Court had no jurisdiction in sending the said child to such an institution and despite this, the Honourable Judge ordered inter alia that the said child Bibi Natalia Hamid be placed at the New Opportunity Corps until a related contempt motion arising out of the said habeas corpus proceedings had been heard and determined.
The AG went on to say in his affidavit that the contention of the applicant herein is that a sitting Judge of the High Court of the Supreme Court of Judicature has no jurisdiction to send the child Bibi Natalia Hamid to the said New Opportunity Corps.
After citing the law in support of his contention, the AG said that the child's constitutional rights have been violated, more specifically, her right to a fair hearing as guaranteed by Article 144 (8) of the Constitution of the Republic of Guyana, her fundamental rights as enshrined in Article 40 of the said Constitution and her right to due process.