Archive for July 20th, 2013

CJ faces ‘enormous’ decision

| 20/07/2013 | 24 Comments

(CNS): The three day courtroom battle, in which Tara Rivers and her legal team fought to save her West Bay seat in the face of a petition challenging her qualification, closed Friday afternoon, leaving the chief justice with what was described as an ‘enormous’ responsibility. Abraham Dabdoub, the lead counsel for the petitioner, John Hewitt, said Chief Justice Anthony Smellie was the last word as the constitution sets out that the Cayman Grand Court’s decision in an election petition is final and cannot be reviewed or appealed. As he adjourned the hearing Friday around 4:15pm, the chief justice said he would take some time to consider his decision but did not indicate how long.

The case was of considerable magnitude, as both sides have submitted volumes of case law to support their extensive arguments, as well as legal opinion. With reams of material before him to weigh up, the chief justice has acknowledged the need for a speedy resolution but has given no indication if the decision would be delivered in days or weeks.

Sir Jeffery Jowell QC, who made his closing submissions after Dabdoub had made a long and persuasive presentation on both the issue of residency and allegiance to a foreign power, also noted how significant the CJ’s decision would be.

“A decision for a court to intervene and overturn the will of people is one of the gravest acts anyone ever undertakes and a court should hesitate unless the decision is clear, as ambiguity cannot suffice,” Jowell warned.

Pointing to the preliminary report by the international team of observers that came to oversee Cayman’s general election, Jowell said they had described some of the requirements for candidates as unreasonable. Regardless of the democratic issues, Jowell faced significant legal hurdles regarding his client’s possession and use of an American passport and her absence from Cayman for considerably more than 400 days in the seven years prior to election.

Jowell chose to tackle the issue of residency through tax case law, where residence is not defined through presence or the absence of it. He said residence was a legal concept that “may boil down to fact and degree” but the criteria, he said, depended on the context and written word of a law. He said that in the case of the Cayman Islands constitution, of which Jowell was one of the architects, there was no definition, so he said the judge must give it the most generous interpretation. 

However, the CJ pointed to the issue of the 400 day exception in the seven years and the evidence before him that Rivers was absent for far more by her own admission. As a result, Jowell first adopted a position that he did not need to argue the point and presented case law to the chief justice arguing that, as the boundaries had already been set by the original pleadings, he did not have to deal with new issues.

Nevertheless,Jowell had to acknowledge the need for the chief justice to consider why the 400 day exception would be placed in the constitution to provide for a person to be absent for a set period if they did not need to be present to qualify for residency. As a result, he embarked on the argument that Rivers was overseas for the purposes of education and that her time with Allen & Overy, the law firm where she was employed as an associate lawyer, was also a period of education and learning.

Dabdoub had already anticipated that Jowell may go down that road and had argued that Rivers had a work permit and not a student visa, had not attended a college or university, had drawn a salary on which she paid UK tax and had headed up various deals for the firm, so while she may have taken extensive advantage of the training offered to her, she wasn’t a student.

Taking the challenge over Rivers’ decision to take up her right to an American passportas an adult and to continue using it, Jowell pointed to the law in the US which requires people born there and who are citizens of America to use their US passports to come and go from that country. If she didn’t, Jowell said, Rivers would have to avoid the US as a point of transit, a virtual impossibility for anyone living in Cayman, or break its laws.

“The constitution was never meant to turn on technical issues. It is about dual loyalties and to prevent subversion by a foreign country, not the use of a passport,” Jowell maintained, as he said Rivers adopted all of Professor David Cole’s evidence.

Although possessing an American passport as an adult has been seen by the Elections Office as grounds for disqualification, Jowell argued that the Cayman Islands constitution was, in fact, unique and was the only constitution that tolerates dual citizenship and provides for a person born in another country to retain the rights that come with that birth.

Nevertheless, Dabdoub had already argued that the Cayman constitution does not tolerate dual nationality for its citizens who run for election born outside of Cayman. He argued persuasively that such an idea would be tantamount to creating a special group of “first class Caymanian citizens who had special privileges”. Dabdoub stated that it was not a "carve out" to allow potential legislators to have dual allegiance but merely acknowledged that they still had a right to run for office despite being born overseas and having dual nationality, provided they did not act upon that right.

With volumes of case law supporting his position and that of his legal expert, Professor David Rowe, Dabdoub described Rivers' legal team as having presented some interesting legal arguments that may at some point in the future be taken up by local legislators and changes might be made to the constitution to accommodate them. But he said, “Right now, the wording of the constitution does not support what they say.”

The case has now been adjourned for the chief justice to decide on Rivers' qualification or disqualification. If he finds in favour of the petition, he has indicated that there will then be a further hearing regarding the remedy of her disqualification. The petitioner has requested the automatic return to office of the UDP candidate and his wife, Velma Powery-Hewitt, as the fourth elected member for West Bay. However, it is unlikely that the courts would do so without consideration of a bye-election, given that Rivers polled almost 1,500 votes from some 42% of the electorate, which was a clear opposition vote to the UDP candidates.

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