Ruling on Attorney-General's motion Monday
June 19, 2004
Justice Yonette Cummings-Edwards will deliver her ruling next Monday on a motion filed by Attorney-General Doodnauth Singh opposing the placement at the New Opportunity Corps (NOC) of a girl at the centre of tug-of-war between her mother and city businessman, Reeaz Khan.
Last Friday, Justice BS Roy ordered that the 13-year-old girl be placed in protective custody at the NOC for two weeks and receive professional counselling during that period.
Justice Roy is currently presiding in habeas corpus proceedings brought against Khan and the Ministry of Human Services and Social Security by the child's mother, Bibi Shameeza Hamid, in a bid to regain custody of her daughter.
However, earlier this week, AG Singh 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 directive is unconstitutional.
In response, the child's mother, through her legal team with attorney Nigel Hughes as lead counsel, has taken steps to have the AG's motion dismissed.
AG Singh, in support of his contentions yesterday, submitted before Justice Cummings-Edwards that once the child had been produced subsequent to the habeas corpus proceedings filed by her mother, that matter should have been immediately concluded.
The AG told the court that he had intervened because the role of the AG dictates that it is his [the AG's] responsibility to ensure that both the judiciary and the executive uphold the law. Therefore, there is no conflict when the AG seeks to ensure as guardian of the public interest that there has been no violation of constitutional rights.
"The judge can only act within the confines of the rule of law and the Attorney- General as the guardian of the rule of law has a responsibility to ensure that [the judge] does not act outside of the confines of the rule of law," Singh argued, adding that Justice Roy had made a legally erroneous decision to send the child to the NOC.
The AG again protested that the child had not been allowed to speak on her own behalf arguing that if the law makes her competent to indulge in sexual intercourse then she ought to have been allowed to make verbal representation on her own behalf. AG Singh reminded the court that attorney Carol Martindale-Howard, who had said that she had been retained by a 'next friend' [guardian] to represent the child, had also not been allowed to speak and had not been invited to be in the chamber sessions.
But Hughes contended that a child can have no superior constitutional right over his/her parent and further, in this case, sole legal custody of the child resides with his client while the court is the child's upper guardian.
Hughes said when the child's mother filed habeas corpus proceedings seeking to regain custody of her child, she had spoken on the child's behalf therefore there was no need for the child to be heard.
Further, that the action taken by Justice Roy, in the court's capacity to act as upper guardian, had been consented to by the child's mother.
"The child did not need a lawyer or 'next friend' or guardian because her mother still possesses sole legal custody of her... ", Hughes posited.
The AG, meanwhile, said that his intention was to appear on behalf of the state to protect the child's constitutional right... "A misconception exists which suggests that the judiciary is the only guardian of the constitution..." the AG asserted.
Hughes, however, contended that the only guardian of the rights in the constitution is the judiciary... "Where a perception exists that the judiciary has erred, the logical recourse is by virtue of appeal...It is the judiciary and only the judiciary that is the sole guardian of the rights of the individual to freedom, lack of hunger and other rights as declared under Article 40 of the constitution...The state has none of these rights accorded the individual such as the right to liberty or to be free from ignorance..." the court heard.
"The state is incapable of having fundamental rights...the court can only be approached on behalf of the rights of the citizen..." Hughes declared, requesting that the judge either consider intervention by the child's mother in relation to the motion or dismiss the motion.
According to Hughes, the issue of contention in this case is not whether the rights of the 13-year-old have been contravened; rather it concerns the quality and nature of the location to which she has been sent and this is supported in the AG's affidavit where he refers to the likelihood of the child being stigmatised.
Hughes added: "When the court utilises its power in its capacity as upper guardian, there can be no argument of unlawful detention especially since the child's mother [her sole legal custodian] had agreed to the court's action."
The matter resumes before Justice Cummings-Edwards at 3:30 pm