Legal arguments dominate AG’s constitutional motion
“AG sues himself” - Hughes: “I guard the constitution” – AG
June 17, 2004
The hearing into the constitutional motion filed by Attorney General Doodnauth Singh in the High Court, seeking to set aside Justice B.S Roy’s ruling to send the 13-year-old to the New Opportunity Corps began before Justice Yonette Cummings–Edwards yesterday.
The Attorney General petitioned the court to declare the order made by Justice Roy null and void, contending that the Judge had no power to issue such an order.
The Attorney General noted that as directed, the motion had been served on Justice Roy and that he was only prepared to entertain arguments from that judge or his counsel.
Attorney at Law Nigel Hughes, representing the interest of Bibi Shameeza Hamid, the mother of the teen, filed an application on behalf of his client to represent the interest of the teen.
However the Attorney General told the court that he has read the document and did not wish to respond to anything in it, since the issue was one which dealt with the minor and not the mother whom Hughes represented.
“The issues in the constitutional motion are issues between the child and the institution of the judiciary and proceedings can only be instituted either in the name of the person who has been named or at the behest of the Attorney General who is the legal guardian of the constitution. No other person can be heard,” the Attorney General said.
Singh said that he is not concerned with the issues, which have given rise to the media frenzy in the matter, and reiterated that he was just there to ensure that any order made by a judge in any proceedings at the behest of anyone is not made in violation of the constitution.
“The mother of the child has no interest in the constitutional motion that deals with the order made by the judge. My only concern is whether the trial judge acted constitutionally and exercised due process of the law.
However, Hughes posited that the had a right to be heard in the matter since the child had no basis on which the court can be moved on her behalf except through a next friend or a guardian appointed by the court or her mother who has been appointed legal guardian.
Referring to the constitutional motion filed by the Attorney General, which called for Justice Roy’s order to be declared null and void, he noted that a person cannot seek such an order unless there is a defendant, who in this case is the Attorney General himself.
“In actual fact the Attorney General action has filed to take action against himself.”
He noted that the person to whom legal custody was granted was Hamid, as mother of the child and therefore no other person has the locus standi to move to the court on her behalf.
Hughes argued that the Attorney General, in his motion concedes that Justice Roy in his capacity as upper guardian of the child, sought to place the child in the protective custody of the NOC.
He reiterated that the Infancy Act gives Justice Roy that right and therefore he acted in his rightful capacity.
He noted that in May, the court was moved by way of a habeas corpus instituted by the mother of the child against Reeaz Khan and Minister Bibi Shadick. Therefore the only persons who are capable of alleging a breach of any fundamental right would be the mother or the respondents, Khan or Minister Shadick. He contended, “The child has no independent rights except through the sole legal guardian, her mother. The court can exercise upper guardianship, but the sole person entitled to custody of the infant is the mother, therefore there can be no allegation that the mother has breached the constitutional right of her daughter because constitutional rights are only against the state, not between two persons.
“The Attorney General has no locus standi to say either that the 13 year old is the prisoner of Justice Roy or that she has been wrongfully detained.”
Hughes said, in effect the action filed by the Attorney General is a legal impossibility since the executive of the state is alleging the judiciary, another arm of the state, is acting unconstitutionally. The state act requires that the Attorney General be the defendant in all proceedings brought against the state.
Therefore if the motion filed by the Attorney General is granted and the substantive affidavit of declaration is given, then it would be against himself, Hughes noted.
He noted that in the first paragraph of his motion, the Attorney General says that he filed the affidavit in his capacity as Attorney General.
“He cannot seek to move the court on an infringement of a constitutional right. That is a legal impossibility since he is legal the person designated to represent the state in such cases. We have no precedent for this type of thing in the judicial system”, Hughes argued.
He also brought it to the trial judge’s attention that the Attorney General’s affidavit named no plaintiff or defendant.
He noted that Mr. Singh was attempting to secure a declaration for breach of a constitutional right but according to the law, the only person against whom such a declaration could be made was the Attorney General himself.
Hughes noted that from the motion it is clear that the Attorney General's contention is that the child was placed in the NOC but pointed out that he was a party to the habeas corpus proceedings at which the decision was arrived at.
He said that if Singh felt dissatisfied with the decision, the matter should have been filed before Justice Roy since the matter of the habeas corpus is still being heard before him.
He noted that from the tone of the motion, the AG is not contending that the judge does not have the right to place the child in a home, but has a problem with the quality of the location.
He noted that his concerns seem to be with the fact that it is a criminal institution and with poor facilities adding that those were not constitutional infringements as claimed by the Attorney General.
Hughes said that in the AG’s constitutional motion, some 15 homes were recommended to which the child could have been sent, but he noted that in the habeas corpus proceedings the Attorney General only suggested two, both of which were known to Justice Roy.
He related that one of the homes recommended by the AG, the Genesis Home, no longer existed and since the judge was also familiar with the other home, he immediately related that he did not feel that it was secure enough.
He said the judge then sought the assistance of interested persons present with regards to other possible locations and asked counsellor Lisa Thompson to interview the minor and recommend a suitable place for her.
In response, the Attorney General quoted Article 139-1 of the constitution, which states that no person, regardless of his or her age, should be, deprived the right to liberty except by law.
He noted that with the placement of the child at NOC this right is being breached.
“A person can only be sent to NOC in certain circumstances- if they are charged and found guilty of an offense, frequents the company of thieves, have been found wandering or not having an fixed place of abode, or if the parents represent that they are unable to control the child,” he said.
He stressed that the trial judge had no jurisdiction to make a condemnation order, which in effect he says is what justice Roy’s order was.
In answer to the claim by Hughes that as an executive of the judiciary he could not take action against the lower arm of the judiciary he stressed, “ If the judiciary arm violates a right of any citizen the Attorney General, as the guardian of the constitution, has a right to act against anything he deems a violation.”
He said that the judge also has a right to defend himself, adding that it is not in every instance that the Attorney General will represent him, especially if he believes that the judge has acted unconstitutionally.
He reiterated that the only way that the child could have been properly represented is by counsel for her.
He noted that at the hearings at which the decision to send the child to NOC was made, she was not given a chance to speak or intervene on her own behalf.
‘The child was condemned unheard,” he said He expressed hope that the issues will be fully ventilated.
The matter continues on Friday.
Meanwhile the Guyana Human Rights Association (GHRA) describes the motion filed by Attorney General Doodnauth Singh challenging Justice Roy’s decision to send the teen to NOC as shocking.
The GHRA says that while the law may allow the Attorney General to assume a private capacity when it suits him, the fact remains that he is the chief law officer of the state.
In a release the organisation said that since Justice Roy also represents the state in his capacity as protector of the child, this is a situation of the state seeking a stay of execution against the state.
The GHRA says to this extent the Attorney General is bringing the justice process and the government into disrepute and brings inappropriate pressure to bear on the judge in question.
The organisation believes that were Mr. Singh a disinterested citizen, his intervention would be remarkable for its insensitivity to the efforts by the judge to protect the child and to listen to a wide range of opinion on how best to do so.
In the circumstances of his being the former attorney of Reeaz Khan, the adult figure who propelled the case to the remarkable lengths it has reached, his intervention may be perceived as neither disinterested, nor in the public interest.