“My ruling is that the Attorney General has no locus standi in this case and the court will not entertain this issue,” Justice Yonette Cummings-Edwards declared yesterday.
Her decision came as she moved to dismiss the constitutional motion filed by Attorney General Doodnauth Singh. The Attorney General was seeking to have Justice B.S. Roy rescind his order to send the 13-year-old involved in the relationship with Reeaz Khan to the New Opportunity Corps.
Justice Cummings-Edwards said that her decision was arrived at after careful consideration of the arguments presented by both the AG and the attorney-at-law, Nigel Hughes, who appeared on behalf of Bibi Shameeza Hamid, the mother of the 13-year-old.
Two Fridays ago, Justice Roy ordered that the 13-year-old be placed in protective custody at the NOC for two weeks and that she should receive professional counseling during that period.
Justice Roy is currently presiding in habeas corpus proceedings brought against Khan and Minister of Human Services Bibi Shadick by the teen’s mother, Bibi Shameeza Hamid in a bid to regain custody of her daughter.
However last week, the AG filed a notice of motion in the high court seeking a conservatory order to stay the execution of Justice Roy’s order and further, a declaration that the judge’s order is unconstitutional and should be declared null and void.
In response, the child’s mother, through her attorney Nigel Hughes and his team, had taken steps to have the AG’s motion dismissed.
Before issuing her ruling yesterday, Justice Cummings-Edwards noted that procedure dictates that if a judge has acted unconstitutionally, the remedy for such an error is to appeal to the court. She added that the error must constitute failure to observe constitutional rights.
She made it clear that she was not dealing with the constitutionality of Justice Roy’s actions but rather whether the AG has any locus standi to file such a motion and whether the motion filed is sustainable by law.
She also noted that no judge can be held personally liable since they act in their constitutional capacity.
She noted that any claim against a judge in liability, is in effect a claim against the state. Constitutional proceedings are not brought against a subject but against the state as a means of ensuring that the constitutional rights and freedoms as enshrined in the constitution, have not been infringed, she added.
“The Attorney General, in the first paragraph of his constitutional motion, made it clear that he was acting in his own capacity as Attorney General of Guyana. The question is, ‘Can he do that?’”
According to Justice Cummings-Edwards, the action taken by the Attorney General amounts to an action of the state against the state, an occurrence which she said was never considered by the judicial framework.
She however noted that the judiciary welcomes such challenges.
Justice Cummings-Edwards said the person by whom such an action can be brought on behalf of the teen, is the person who has lawful custody. The Attorney General is not the patriarch of the parents, she said.
She made it clear that for such a claim to be filed the applicant must have legal jurisdiction.
The judge also explained that for such a declaration like the one filed for by the AG to be granted, the applicant must have real interest.
“In this action who is the proper party against which the declaration is being sought?” the judge asked
She noted that the court will not grant such a decision to any plaintiff whose case is too indirect. A declaration cannot be granted mainly because the petitioner chose to attack rather than defend the judicial system.
She noted that the court usually grants judgments to the parties represented in a particular case and not anyone else. Over the last week, the AG had reiterated that Justice Roy had made a legal erroneous decision when he ordered that the teen be sent to the NOC. In his motion, he cited the Training School Act which says that the facility is a penal institution for juvenile offenders who could only be sent there if they are found wandering, where a parent cannot control them and has made representation for them to be sent there, or if they have committed a criminal act .
The AG objected to the facility on the grounds that a stigma would be attached to the girl for having gone there.
He also contended that a basic constitutional right of the teen had been infringed when she was not allowed to speak on her own behalf in court. In his motion, he noted that he had been granted leave to intervene in the case and had openly objected to the child being placed there.
He stressed that as guardian of the constitution he was within his right to intervene because a citizens’ legal right had been breached.
Mr. Hughes had stressed that the AG did not have any authority to intervene in the matter since the constitution did not give him the rights he had assumed.
He disagreed that the AG is the legal guardian of the constitution, pointing out that it was the judiciary who guarded the constitution.
Hughes contended that the teen was given a fair hearing when her mother, who has legal custody of her, spoke on her behalf. He also contended that the girl’s mother, who has sole authority over her, had not invited the AG to intervene on her behalf. He reiterated that if the AG filed the motion on his own behalf he was in fact suing himself, which is a “legal impossibility”.
Meanwhile the two-week period of protective custody of the girl in the NOC will expire on Friday. The matter will then continue before Justice B.S Roy who will seek to establish the way forward with respect to the teen.