The saga of the 13-year-old Judge to rule on AG’s motion Monday
June 19, 2004
Justice Yonnette Cummings-Edwards is to rule on Monday on the constitutional motion filed by Attorney General Doodnauth Singh seeking to set aside Justice B.S. Roy’s order to send the 13-year-old involved in the relationship with Reeaz Khan to the New Opportunity Corps.
When legal arguments continued yesterday, Attorney-at-law Nigel Hughes representing the interest of Bibi Sheemeza Hamid, the mother of the 13-year-old in the relationship with Reeaz Khan, petitioned the court that either the AG’s motion be dismissed or he be allowed to intervene.
Hughes made this submission after the Attorney General, in answer to a question from the trial judge, confirmed that he was not representing the interest of the child but was petitioning the court in his own capacity.
The AG told the court that the constitutional right of a citizen has been violated and in his capacity as guardian of the constitution, it was within his mandate to defend the girl.
“The judges cannot do whatever they feel. They have to act within the rule of law and if the AG is guardian of the rule of law, once they act outside of the confines of the rule of law, it is the responsibility of the AG to set it right.”
He noted that as the Chief Law Officer of the Executive Council he has a special responsibility as guardian of the concept of the rule of the law, noting that it is the rule of law that protects the citizens from arbitrary measures and safeguards a person’s liberty when that liberty has been condemned unheard.
Mr. Singh noted that it is within the mandate of the AG to conduct and regulate all litigation for and against the crown.
He added that additionally, the AG is also tasked with the responsibility of litigation on behalf of citizens. He told the court that the 13- year-old was not given a fair trial
“It is not the constitutional right of anyone not to be condemned unheard. For anyone not to be legally represented is a violation of his constitutional rights,” the AG said.
He reminded the court that the motion instituted by him has been made because he believes that there has been a violation of due process and he is challenging the order of condemnation made by Justice Roy.
He stressed that there was no need for that action to be instituted on behalf of any next friend, or guardian as contended by Hughes.
The AG said that when the mother of the 13-year-old filed habeas corpus proceedings, she was seeking the relief of her child from Khan and the Minster of Human Services, Bibi Shadick.
He noted that the case should have finished there since the mandate of the habeas corpus proceedings was to have the child produced.
“The matter had come to an end. After that, every step of the matter was invalid in the essence of the habeas corpus proceedings. The child was returned out of the custody of Khan. The matter had ended, yet the judge went ahead and determined custody.”
He also stressed that there can be no proper adjudication unless both parties are given a reasonable opportunity to be heard.
‘The child who has been condemned was not allowed to speak, but that same law says she has the right to be involved in sexual intercourse. Her counsel was not even allowed to say a word on her behalf.”
Hughes contended that the AG seemed to have taken a shift in his position on the issue.
He noted that it is the judiciary that stands between the power of the executives and has protection of the rights and freedoms of the individual.
“That is where I believe that the AG has made a mistake when he submits that the AG is the guardian of the constitution. The only guardian of the rights of citizens as set out in the law is the judiciary,” Hughes said.
He told the court that the perception of the AG is that the judiciary has fallen into error. The avenues of reform available to him should be by way of appeal since at the end of the day, the AG is the advisor to the executive council and can therefore call on the judiciary to step into line.
“The lawful consequences of the AG’s case are that he is above the judiciary and that is not true because at the end of the day, it is the judiciary and only (the judiciary) that can pronounce on and protect the rights of the citizens.”
Hughes noted that the Constitutional Amendment Act of 2003 conveys and confers certain rights such as the right to liberty on citizens.
He said that the constitution clearly sets out that only an individual can appeal to the High Court if he/she feels that a constitutional right has been breached.
Since the state has no such rights, it cannot on its own behalf, appeal for a declaration of an infringement of such rights.
“So when the AG says that he is not making an application on behalf of the child, that is the end of the constitutional motion because he can only approach the court on behalf of a citizen whose constitutional right has been infringed”.
“The AG of himself cannot get up as an interested party and say, ‘Look! I feel a person’s rights have been infringed,’ unless the application is being brought for on behalf of that person.”
“So when the AG told the court that he did not bring any matter on behalf of the minor but at his own instance, he has no locus standi to engage the constitutional jurisdiction of this court.”
He also reiterated that the main objection in the AG’s motion was with the quality and location of the institution in which the court placed the child rather than the fact that she was not sent to a home. This, Hughes insists, is not a breach of a constitutional right
“The AG talks in his affidavit about the stigma that could be attached to the teen because of her being placed (at the NOC), but stigmatism or bad reputation is not a protective, fundamental right. You do not have a right against being stigmatised.”
Commenting on the contention by the Attorney General that the teen was not given a chance to be heard, Hughes said that the child was given a hearing through her mother, who has the sole responsibility for her.
He reiterated that a child couldn’t have superior constitutional rights to the parent. He noted that parents have full responsibility of a child until it has been relieved by the court.
He said that the habeas corpus proceedings were brought before the court by the mother of the child on behalf of her child, seeking custody of her child from Khan and Human Services Minister Bibi Shadick.
“The 13-year-old has no independent right. The mother was acting in the sole interest of her.
The judge could not tell the mother, ‘OK, I heard what you have to say, and then ask the child to say her piece. (The child) has no independent right.”
He said that the fact that according to the law, the teen is allowed to have sex has nothing to do with the matter.
“The law may have given her the right to have sex but it certainly has not conferred on her the right to challenge the court, or to move independent of her parent.”
He said no one could therefore say that the child was not heard because she was given a hearing through her mother who has sole custody of her.
He, therefore, said that the mother is the only person who can challenge the decision and has not done so.
Hughes contended that the only person against whom a declaration can be obtained is the state.
If the AG is seeking such a declaration in his own right then he is doing so against himself.
He submitted that the case be dismissed or that he be allowed to intervene since it is incapable of being sustained in its present order.