Mother objects to Attorney- General's intervention
June 17, 2004
The mother of a 13-year-old girl involved in a controversial relationship with city businessman, Reeaz Khan, is seeking, through her attorneys, to intervene in the matter relevant to the notice of motion filed by Attorney General (AG) Doodnauth Singh earlier this week.
AG Singh is petitioning to stop the order made by Justice BS Roy last Friday, directing that the child be placed in 'protective custody' at the New Opportunity Corps for two weeks and that she receive professional counselling.
The matter came up before Justice Yonette Cummings-Edwards yesterday afternoon and the child's mother, Bibi Shameeza Hamid, was present with her legal representatives including attorneys Nigel Hughes, Stephen Fraser, Priya Manickchand, Sharon Small, Andrew Pollard and Nigel Hughes. AG Singh appeared on his own behalf with State Counsel from the AG's chambers, Naresh Harnanan.
Justice Roy was not present and no one appeared on his behalf.
In his submissions with a view to establishing why the child's mother has locus standi to intervene in the matter relevant to AG Singh's habeas corpus application, Hughes noted that the AG is an executive of the state and is seeking an application against the judicial arm of the state. Thus, Hughes contended, a legal difficulty arises since the AG's application amounts to an application by the state for a declaration that the state has wrongfully detained the child.
According to Hughes, the child's mother has sole legal responsibility for and custody of her daughter, therefore, she [the mother] possesses the legal authority to move the court on her daughter's behalf or to appoint someone to act as 'next friend' or guardian of the child to do so. Hughes submitted that according to the instructions, his client [the child's mother] had not given the AG her permission to act as 'next friend' or guardian on her child's behalf, and further, that Justice Roy's decision had been made with the mother's consent.
Hughes argued that Justice Roy had acted, as conceded by the AG in his affidavit in support of the notice of motion, as upper guardian of the child when he directed that the child be placed in 'protective custody' and that the judge's legal capacity as upper guardian of the child is guaranteed under Section 21 of the Infancy Act, Chapter 46:01 of the Laws of Guyana.
Hughes pointed out that in circumstances where a judge is sued, the AG acts as the legal representative of that judge. In other words, Hughes said, the AG had sued himself by taking legal action against the judge.
Hughes told the court that the child is the subject of the habeas corpus proceedings brought against Khan and the Ministry of Human Services and Social Security by the child's mother in her effort to recover custody of her daughter from Khan. Thus the Constitutional rights, Hughes said, are only in relation to the state, not a person, and the child has no constitutional rights against her mother, and further, the only person capable of challenging the judge's order is the child's mother because she possesses sole legal custody of the child.
"If the Attorney General had been dissatisfied with Justice Roy's ruling, then he could have taken legal action by way of appeal," Hughes stated.
The court, Hughes emphasised, had not sent the child to the NOC in the capacity of a prisoner but to be kept in 'protective custody' away from Khan and as for the AG's concerns about "support mechanisms", the court had appointed Social Worker/ Counsellor Lisa Thompson to counsel the child during her stay at the institution.
Regarding the AG's contention that the NOC is legally inappropriate for the child, Hughes pointed out that in paragraph 20 of the AG's affidavit in support of his motion, he had stated that the Training Schools Act provided for a parent to request that the court send his/her child to that facility if that parent is of the opinion that he or she cannot control that child.
The AG, meanwhile, stated that he was "...not concerned with the issues which have given vent to the media frenzy in this matter." The AG continued that he is concerned about any order made by the judge in any way contravening the child's rights as relates to the provisions of the constitution as referred to in his affidavit in support of the notice of motion.
The AG also contended that the judge has no power to order that the child be sent to the NOC.
"I have seen and read the affidavit filed by [Hughes on Hamid's behalf] seeking to intervene in this matter regarding my application. But I do not wish to respond to anything that he has said in it. The issues in this motion are between the citizen and the institution of the judiciary and proceedings can be instituted either by the person named in it or the AG who is the legal guardian of the constitution...the child's mother has no interest in this application..." the AG asserted.
AG Singh maintained that the child's right to a fair hearing had been contravened and reiterated his earlier concern that attorney Carol Martindale-Howard had not been asked to voice her opinion.
The matter has been adjourned to tomorrow for Justice Roy to be given an opportunity to appear and for the AG to continue his arguments.