‘I am qualified’ Rivers claims

(CNS): Despite admitting to being employed by a UK law firm for a significant period of time during the seven years prior to the May general election, Tara Rivers has claimed that she was still resident in the Cayman Islands and qualified to be elected to the Legislative Assembly. She insisted that this country was still her home, even though she was overseas developing her career. In a long day of intense and sometimes prickly legal arguments between the lawyers representing Rivers and those representing John Hewitt, the petitioner who filed the challenge, it became clear that Rivers’ legal team does not intend to rely primarily on the position that she was a student while abroad but that she was legally resident in more than one country.

Nevertheless, when she took the stand, Rivers focused heavily on the training and educational development she said she received during her time at Allen & Overy in London. She also pressed the point that she believed, and still believes, that she was qualified to run for office and therefore qualified to be elected.

As he outlined the position of his client, Sir Jeffery Jowell, QC, the constitutional lawyer leading Rivers' legal team, said that, should the chief justice, who is hearing the case, decide that Rivers was not resident in Cayman, they may seek to rely on the issue of educational development during her time overseas, an exception provided for in the constitution. But Jowell made it clear that their position in the first place was that the exceptions to the seven year residency requirement could only be relevant if Rivers was found not to be resident in Cayman in the first place, which they maintain is not the case.

Rivers, who is now the education minister, also admitted that she has a United States passport that was renewed in 2006 which she uses for travelinto that country. However, she claimed this did not constitute an act of allegiance to another power as she had a right to the passport because she was born in the US.

The day’s legal proceedings in the much-anticipated petition hearing began with an argument between counsels. The lawyers wrangled over whether or not the petitioner should be allowed to call further evidence to support his position that his wife, Velma Powery-Hewitt, should be duly elected in place of Rivers if the petition succeeds. This was fiercely objected to by Rivers’ team, based on the strict directions that had been laid down by Justice Alex Henderson in the preparation of the case in order to ensure the matter was dealt with as quickly as possible in the public interest.

However, while Chief Justice Anthony Smellie did not rule out the possibility that he would allow further evidence on that point, he took the position that the challenge to Rivers’ qualification to be elected had to resolved first before any decision on what the remedy might be if she was not.

Once the case was underway, Hewitt was called to the stand first and his petition introduced to the court. Under cross-examination of his affidavit supporting the petition, a number of significant errors in the document were highlighted by Jowell that raised questions of how familiar Hewitt was with what was said to be his own evidence. Sowing seeds of the idea of opportunism on the part of Hewitt and that he may not be the sole protagonist of the petition, Jowell was brief with his cross-examination.

With the essence of the case outlined, Hewitt said he believed that Rivers was not qualified by virtue of having an American passport and disqualified by the fact that she did not meet the seven year residency requirement prior to any election. He also said that he believed that the returning officer had failed in his duty to address these issues.

Rivers took to the stand just before lunch and was taken through her affidavit by Jowell, giving her the opportunity to establish her defence and the position that her primary residence was always in West Bay, as she referred directly to her home on Uncle Bobs Road. She spoke about her time overseas as something she had to do so that she would be better equipped to serve her country. Rivers said she retained her car here, and aside from the few personal possessions she needed with her while overseas, most of her belongings remained at her home in West Bay.

Rivers insisted that her time overseas was about professional development and her intention had always been to return to Cayman as soon as possible, where she remained a resident throughout.

She admitted that she owned and used an American passport, which she said she was entitled to hold by virtue of birth, but this did not mean she had committed any act that suggested allegiance to another country.

During cross-examination by Hewitt’s leading counsel, Abraham Dabdoub from Jamaica, a number of issues were raised and put to Rivers about her views regarding her qualification. He asked if she was aware that Richard Christian, who also has a US passport because he was born there, was disqualified by his returning officer in Bodden Town. Rivers was evasive and said that she was in West Bay dealing with her own nomination at the time and was not clear on the details of Christian’s disqualification. Asked if she believed there should be one rule for all Caymanians, Rivers was hesitant and hedged her answer before she eventually said yes.

She also claimed not to have read the voluntary declaration form given to her on Nomination Day and said that when it was clear that it was not a constitutional requirement, she opted not to fill it in. When it was suggested by Dabdoub that Rivers had read it but refused to sign it because it asked if she had any other passports, the education minister denied that and insisted she had opted not to sign it as she did not need to under the law.

Although Rivers said several candidates had refused to fill in and sign the voluntary form, the Elections Office had confirmed that only a handful of the 56 candidates had declined to submit the declaration. The form had been designed, election officials said at the time, to focus the minds of candidates on their qualification, as officials had hoped to avoid the possibility of any challenges to the election result.

Those hopes were clearly dashed with the filing of Hewitt’s petition, and during the afternoon’s cross-examination Dabdoub pressed Rivers for the details of her time overseas and the use and renewal of her US passport.

The questioning was in preparation for what will be the critical arguments between the teams’ expert witnesses on the American constitution and citizenship that are both expected to be called to give evidence Thursday.

As the case progressed, it became clear that, despite the complexities and continued disagreements between legal counsel, the issues will be very narrow. The chief justice will have to decide if Rivers’ absence from Cayman in the seven years prior to the election meant she was or was not resident and whether the renewal and continued use of an American passport by Rivers constituted an act of allegiance to another power.

The case was adjourned on Wednesday afternoon just before 5pm in what remained a packed courtroom. During the course of the afternoon’s hearing, Premier Alden McLaughlin was in attendance, as well as Financial Services Minister Wayne Panton and several other PPM party members. Most of Rviers' Coalition for Cayman election running mates attended at some point during the hearing, including Kent McTaggart, who opted not to run in Bodden Town as a result of questions over the seven year residency requirement.

Although Velma Hewitt was present, none of her West Bay UDP party colleagues attended but the UDP party chair, Tessa Johnson Bodden, was in court and Theresa Lewis Pitcairn, one of the UDP’s BT candidates, was also present in the afternoon.

The case will resume in Court 2 at 10am Thursday.