Case stalls on critical point

| 19/07/2013

(CNS): Chief Justice Anthony Smellie pointed to the need for Tara Rivers' legal team to address both references to the issue of residency set out in Cayman's 2009 Constitution. Before the lunch break today, the CJ directed Sir Jeffery Jowell (left) to prepare to address what the constitution says about a candidate not being absent for more than 400 days in the seven years prior to nomination, as the issue had not been argued during the trial or in his submissions, but there was clear evidence in Tara Rivers' own afadavit that she was absent from Cayman for much more. Jowell claimed he did not need to address this pointas the petitioner had not pleaded it, but the CJ disagreed and said there was evidence before the court that Rivers was not present and this was a central issue on which he would be forced to decide.

On the third day of the petition hearing on the challenge to the election of Tara Rivers to the district of West Bay at the national poll in May, Cayman's top judge said Jowell's position was that, because Rivers was still resident despite being absent, he did not need to address the concept of her absence for any number of days. However, CJ Smellie said that the sections of the constitution were conjunctive and directed Jowell to resolve whether or not the 400 day rule made it clear that residence for this purpose requires presence.

Unprepared to argue that point as a result of the time limitations on both legal teams over their submissions, Jowell said he would do what he could to address the issue but might require an adjournment.

The issue came up as Jowell was part way through his closing submissions, in which he had argued, based on tax law cases, that while Rivers was not physically in Cayman, this did not mean she was not resident.

However, earlier in his own submissions Abraham Dabdoub, arguing for the petitioner John Hewitt, said Rivers could argue that a person may have more than one place of residence but that was not the issue.

"You can have five residences if you want. The issue here is absence of presence," he reasoned. Someone wishing to run for office, he said, must not have been absent for seven years except in the circumstances given by the constitution. "Any other interpretation would be a ridiculous one," Dabdoub contended, "and it would undermine the provisions and intentions of the constitution."

Check back to CNS later from more on the case, which continues in Court 2.

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  1. Anonymous says:

    I hope from now on anyone who thinks about running for election will read all the rules thoroughly and that those concerned with the election process will go over and over and over again all the details and check with the Legal system to see that all is in order so that this will not happen again!  

  2. Anonymous says:

    "Sir" Jeffery Jowell? Give me a break. It's "Mr. Jowell", CNS. Update : medieval times, and the British Empire, no longer exist. All you with "nighthoods", "earlships". "lordships". OBEs, CBEs, CDMs, kindly take note. Or are you capable? Probably not.

    • Anonymous says:

      Knight is spelledwith a “k”, and empire still exists. We are part of it and long may that be so,

  3. Love being a CONSTITUTIONAL TROLL :o)) says:

    Ummm … didn't Alden get an MB award on this UNCLEAR and AMBIGUIOUS constitution???  Still some saying its a glorious document when the governor and the politician have all of the law-making powers and preveleges over the people of these islands. 

    • Anonymous says:

      Who says it is ambiguous. It looks pretty clear to me (sorry Tara).

    • Anonymous says:

      These provisions were inherited from the 1972 constitution. Stop trying to score cheap political points.

  4. Anonymous says:

    Submitted by SO SAD


    So sad this had to go this far before all this was put through the Courts. This should have been sorted before nomination day. With all the educated people concerned why are we wasting our time voting when all those who have the highest degrees or the most experience in election Laws can't even let the common people know the rules or try to obey them themselves. Some who lost may plan to run again as so stated in the press. I hope they will change their attitudes and try not to fool the people because we are pretty muych fed up of all this nonsense and will soon not even waste our time in voting!!  We have been through enough now and some don't even have decent jobs to maintain themselves and there are those who are making thousands of dollars in politics and doing nothing for these high salaries!!  Wake up everybody – stand up for the right!!

  5. Anonymous says:

    has anyone talked to the election officer for WB that approved her qualification to run in the election — as I recall a BT officer told one of the candidates he would not be eligible because of a residency or passport issue and the person withdrew from the election –plus this lady is a lawyer and she said that she didn't read the voluntary declaration form that states nothing would hinder her from running in the election and didn't sign the form—-

  6. Anonymous says:

    It would be a SHAME that Tara is disqualified.

    As she is VERY intelligent , educated and has so much to offer West Bay

    I see why she did not declear all this from the Beginning because she knew there would be a issue

    So what space are they making for young caymanians going abroad to study

    West Bay needs so badling intelligent, honest, smart, sober  Politicians out of  their social problems

    Us as west bay need to see what our REAL problems are : Lack of morals, real drug and alcohol issues and a lack of Workshops and Seminars and CHurch attendance that will help us help oursleves. Politicians can only  attemptto fix the problems. But we as people can PREVENT our own problems

    • Anonymous says:

      There is no issue with Caymanians going abroad tostudy – if study is their primary status and they are enrolled in an accredited educational institution. 

      • Anonymous says:

        I don't think the constitution refers to "an accredited educational institution". That is a gloss you have added.

        • Anonymous says:

          But I don't think it means "ordinary life experience working full time in a law firm".  If the "University of Life" counted then the provision would be meaningless.

          • Anonymous says:

            Why not? If seamen and airline crew get special exemption just because they work overseas why not lawyers in training? 

  7. Anonymous says:

    Well she sure making history, not sure it is on the right side of the books.  lOL the absence of your presence sure is important.

  8. Anonymous says:

    Residence may be ambiguous but being "absent" seems real clear.

    • Spelling Bee says:

      Tara's spelling bee:


      Definition "not here". 

      Use in a sentence "You were absent when you were working full time in London".


  9. Anonymous says:

    How ironic…that the very constitutional lawyer who had so much input into this new constitution is now forced to argue against the very rules that he, himself, advocated.

    These residency and citizenship rules for running for public office are stupid, short-sighted and discrimminatory but must have been put in there for a reason; a reason that does not favour well educated and qualified Caymanians who owe that status to their ties to other countries.

    Many educated Caymanians were educated abroad, many Caymanians were born abroad, in the USA because of familial or medical reasons and US law makes them eligible for US citizenship and passports.

    Does that make them any less Caymanian ?

    In the final analysis, these stupid constitutional rules disqualifies  some of the best candidates for public office in Cayman. despite the vote of the people who elects them for just those reasons.

    In the spirit of the law, was this what these constitutional rules were intended to do ?

    Maybe that might be a question that the CJ should think to address in his final ruling.

    As for Ms. Rivers, methinks her ministerial sojourn is going to be a very short one indeed !

    That will be be a real kick in the teeth for the West Bay people who elected her as their representative.

    • Anonymous says:

      hear, hear!!!

    • Anonymous says:

      These are provisions carried over from the old constitution. Nothing to do with Sir Jeffrey. 

      • Anonymous says:

        It has everything to do with Sir Jeffrey.

        He was consulted…and paid, quite handsomely I assume…to advise on matters concerning the new 2009 constitution that would improve on the former one…that was the point of the entire exercise….to give the Cayman Islands, a new, improved constitution.

        If these old rules were deemed to be a problem, or outdated, then it was his job to advise as such…and that they be removed or changed.

        Obviously, he did not do this…and has now been employed by an elected representative, to argue against rules that he did not advise against…how ironic, as I've said before.

        The basis of his arguments in favour of Ms. Rivers is very weak but even more so, coming from a man whose job it was to change those rules in the first place.

        Ms. Rivers has done herself no favours also by arguing that she holds no allegiance to the Queen of England either, as well as the USA.

        To whom then, does she hold allegience to ?

        Cayman constitution is one of a BRITISH OVERSEAS TERRITORY, of which the Queen of England is still the HEAD OF STATE.

        What in the fact that THE CAYMAN ISLANDS IS NOT AN INDEPENDENT COUNTRY, does Ms. Rivers not understand ?

        To whom does she pledge allegiance to when sworn in as a member of Cayman's Legislative Assembly, if not the Queen of England.

        Ms. Rivers is treading very dangerous ground indeed if she has missed this very key point.

        In some quarters, that could be interpreted as outright treason.


        • Anonymous says:

          It would seem her sworn testimony in relation to her (lack of) allegiance to our Queen in and of itself possibly disqualifies her. I expected better from the widely proclaimed most intelligent of West Bayer. Making false oaths is hardly a quality we should look to in our leadership.

        • Anonymous says:

          Well said!

        • Anonymous says:

          There is nothing so irritating as someone who pontificates on something they know nothing about. Sir Jeffrey's role was to advise on issues presented to him. 

    • Dred says:

      In all honesty I have no issue with the law.

      Its only because you break it and dont want it to apply against you is the issue here.

      You speak of the spirit of the constitution. The spirit here wants people who put Cayman first and it determined that by holding another countries passport may make you conflicted when making vital decisions about the Cayman Islands.

      While I like the fact that Tara won the seat I disagree now that she deserves it the same way I disagreed that Mark Scotland and John John deserved their seats in BT in 2009.

      Unfortunately two wrongs don’t make a right. Others will say they skirted the law why can she not. I lost respect for them and soon I will for her also because you are ether a symbol of change or more of the same crap.

      People at some point we need to say the laws of the country are more important than my being seated. What example am I setting for the people of my district? My friends? My family? My children?

      Our problem has a lot to do with what we are willing to do tobe seated.

      I have no good answer for Tara. I want her there just not this way. This is a UDP way. Don’t become UDP. Be better. Be the road to change for West Bay. Show West Bay what HONEST GOOD LEADERS SHOULD DO.

      Tara….I will keep you in my prayers.


      • Anonymous says:

        She is already the road for change in West Bay and for this county, even in this very challenge before the courts. you are speaking as if the law and constitution are clear cut on the issues she is facing. It is not – these are issues for legal interpretation which have never been tested in Cayman before so she is in essence helping to make or define the law (and making history) no matter the outcome. These legal questions are very different than the factual issues that Dwane and Mark faced in 2009, so you can’t equate the two challenges. Tara will forever be a leader in this regard, whether she retains her seat or not. Tara obviously took a particular legal interpretation of these provisions when she decided to stand for elections. The court will now determine whether her interpretation on each issue was right or not.

        • Dred says:

          To be honest you can argue almost if not everything if you so desire but things are clear enough for me. The rest is all about twisting the truth to fit our desires.

          I am not going to sit here and make excuses.

      • Anonymous says:

        I have to say I admire Tara. It proves that she will fight for what she believes in, which means she will fight for us. She gave up a job paying her more than what she is now making. As a lawyer she knew the constitution could have had some changes in order to be a complete benefit to the Caymanians. If we go abroad to get an education and return home we are told we don't have the experience. Now Tara goes abroad and furthers her education and then gains the experience and she is now being penalized. We're damned if we do and damned if we don't. Having a US passport is not what makes her an American citizen. From the moment her mother gave birth to her in the US she became an American citizen. Does that mean that when she came back home she shouldn't have the same rights as those of us who were  born here? Here is my point, two sisters who each had a son "born Caymanians". One of those sons who is a seaman takes his wife to spend time with him in the US. She gives birth to a baby girl. The son of the other sister….., well his wife remains at home and gives birth to her baby girl here., Does that make me, the daughter of the other sister's son any more of a Caymanian than Tara,. I think not. Now seriously, where do you think Tara's allegiance lies, with the country where she was born or with the country where all her ancestors came from? We know she would have respect for her country of birth but I fully believe she would pay homage to her ancestral home.

    • Anonymous says:

      I think now is a good time as any for someone/anyone to determine/explain  exactly what determines that a person is "Caymanian".

      Is it by birth? 

      Exactly what does holding a Cayman Passport prove or mean?

      Is a Cayman Passport a proof of nationality or merely a travel document?

      Example:  If a "Caymanian" mother and a Cuban father (married or not married)  have a child in the United States of America the child is an American – entitled to a US Passport/US Citizenship.

      If the same occurs here, is the child Caymanian?

      Why is it if Caymanians who  traveled  to Jamaica for medical reasons to give birth the child is deemed "Jamaican" by the Immigration/Passport Office here ,  but if Jamaicans give birth in Cayman the child is also deemed Jamaican?

      So if being born in a Country is what constitutes your "nationality" , then exactly what is your nationality if you are born here?? 

      Why is it that it is the nationality of the mother / father that determines the child's nationality and not the pure fact that the birth occurred in the Cayman Islands? 



      • Anonymous says:

        Whether or not someone is/was or remains a Caymanian is determined purely by reference to the particular Cayman Islands Immigration Law in force at the relevant time.

        Whether or not someone is entitled to a Cayman Islands Passport is based purely on whether or not they are a British Overseas Territories Citizen by virtue of a connection to the Cayman Islands.

        It is possible to be Caymanain by right, by entitlement, or by grant. Anyone who is Caymanian other than by right may lose that status. Being Caymanian by right can depend on a number of factors including residence, domicile, and marital status of parents at time of birth. Persons who are Caymanian by entitlement may lose their status on their eighteenth birthday unless they meet certain residency requirements and apply for and obtain a continuation. Anyone granted Caymanian status (now known as the Right to be Caymanian) may have that status revoked under certain circumstances. Until relatively recently, it was a requirement that persons were British Subjects before it was even possible to be or to become Caymanian. Being Caymanian does not denote having a particular citizenship or nationality, rather it is a type of immigration status, that today exists entirely independent of a person’s nationality or citizenship in most cases.

        Whether or not someone is a BOTC and entitled to a Cayman Passport is based purely on the UK’s British Nationality Act. It is possible to be a BOTC on the basis of birth, naturalisation or registration. Anyone born in Cayman who remains resident in Cayman to their 10th Birthday is then entitled to apply for registration. Only persons who are registered as BOTC’s gain a right of residence in Cayman. All other types of BOTC citizen require separate immigration standing in order to remain in Cayman under Cayman Islands Law. For example, most persons who are born BOTC citizens will also be Caymanians. All persons who are Naturalised as BOTC’s by virtue of a connection to the Cayman Islands will be either PR holders or already Caymanian.

        A Cayman passport proves nothing. It is merely a travel document. It’s use as an indicator of whether or not someone is a Caymanian is entirely wrong and inappropriate in most instances.

        The United States grants citizenship on the basis of birth in that country. Very few countries do that. The United Kingdom does not. The Cayman Islands does not bestow immigration status on the basis of birth. However, a child born in Cayman to a Caymanian mother is a Caymanian.

        The immigration authorities and police (and both do it) are simply wrong to treat Caymanian children differently whether born in Cayman or not. The place of birth is almost always irrelevant to whether or not someone is Caymanian. The only important factors are usually the domicile and nationality of the child’s parents, and sometimes their marital status, particularly where the father is Caymanian but the mother is not.

        Today, being born in Cayman is entirely irrelevant to whether or not someone is Caymanian.

        Regrettably, the position today is that there are persons with Cayman Passports who are not allowed to be in the Cayman Islands. There are also possibly hundreds of persons who believe they are Caymanians butare not. Caymanians who are unable to prove that they are Caymanian are expected to obtain formal acknowledgment of that fact from the Cayman Immigration authorities.

    • Educated Caymanian says:

      As for the CJ, I don't think the Constitution should have made one judge to rule on such a grave decision as overturning the people's general election! At least, a panel of judges would have been better… But what can I say, that is the law Mother England and the powers-that-be allows for her overseas territory – leave this major decision to one man!

  10. Anonymous says:

    Well done Chief Justice: "rem acu tetigisti". You have hit the nail on the head.

  11. Sam Putt Putt says:

    The "absence of presence." Really? This is the gibberish that must be argued because the Constitution is unclear on such nonsense?

    What is becoming increasingly apparent to me, and not because of this issue alone, is that the 2009 Constitution is a dog's breakfast and Sir Jeffery was obviosly way overpaid for his services in drafting it.

  12. Anon says:

    My prediction – Tara is removed, by election, mervin wins, Winston takes education and appoints Tara as a consultant to the minister.  

  13. Knot S Smart says:

    Was Mac absent from the island more than 400 days in the past 7 years?

    • diogenes says:

      Absence on government business does not count, and since all his trips were always claimed to have a business element…..

      • Anonymous says:

        Check the credit card receipts to see if it is Government Business or not – and flying on financiers private jets is not Government business!

      • Knot S Smart says:

        Please could you provide the section of the constitution that says:

        "Absence on government business does not count"

        • Anonymous says:


          With pleasure:
          (2) Any period of absence for any of the purposes specified in section 61(3) shall be disregarded in determining whether a person is or has been resident in the Cayman Islands for the purposes of this section
          (3) In ascertaining whether a person has been absent from the Cayman Islands for the purposes of subsection (1)(e) or (f), any period of absence by reason of the following shall be disregarded – (a) the performance of duty on behalf of the Government;
          (b) attendance as a student at any educational establishment
          (c) attendance as a patient at any hospital, clinic or other medical institution;
          (d) employment as a seaman aboard an ocean-going vessel; or
          (e) employment as a crew member on any aircraft
          • Anonymous says:

            The problem is he was never on government business. At least we certainly don't have anything to show for it, apart from huge expense accounts.

      • Anonymous says:

        What part was that? The ATM withdrawals, or the actual time at the gambling tables? 

    • Dred says:

      That is an interesting statement.

    • Anonymous says:

      Yes but is was for educational purposes. He was learning ways to waste our money.

  14. Anonymous says:

    How have any of the Candidates established that they are Caymanian – an even more fundamental point!

  15. Knot S Smart says:

    Oh Dear…

  16. Anonymous says:

    Looks like its a wrap for TR. Maybe in 2017 she'll have learned her lesson and be more prepared and transparent. Good luck Winston in your new role.

    • Anonymous says:

      That is assuming that she will be able to run in 2017.

      If she is found to be unqualified, I am not sure that she will be able to run in the next election.


      • Anonymous says:

        Why would she be not be able to run in 2017? If she is found to be disqualified on the basis of residency then she will obviously have satisfied that requirement in 2017 having been present within the Islands for 8 straight years. If on the basis of U.S. citizenship there is plenty of time to renounce. What is your reasoning?  

  17. Anonymous says:

    It is clear that the tax cases have policy reasons underpinning them that do not apply to this issue.  The reliance on the tax cases was a fairly desperate tactic.

    • Anonymous says:

      Not quite. Yes, they have different policy reasons, but the courts can only go so far in making diferent definitions out of the same word. Paying tax is a key example of obedience to a foreign power and most countries tax on the basis of whether or not you are resident – which in many countries including the UK is determined by how many days you have been absent. This is all the same general area of law, just that the courts will change their tune to suit the policy objectives of the particular provision they are dealing with (up to a point).

      • Anonymous says:

        Now that is nonsense.  The same words can have an array of different meanings in various statutory contexts.  Tax uses a broad test of residence so as to widen the net of those liable to be taxed.  It is very different from the context of a residence requirement for political eligibility.

        • Anonymous says:

          When is anyone going to consider Cayman’s own definition of residence?

          • Anonymous says:

            Maybe someone can write a research paper on it at the University of Allen & Overy, apparently it is a fine educational institution.

          • Anonymous says:

            The Cayman constitution does not have its own definition of residence and you cannot simply lift a definition from one statute and apply it in this next. The context is different.

            • Anonymous says:

              “Usual place of abode for the time being without legal limitation” is a pretty good place to start.

          • Tiny Briefs says:

            Put it this way, if you start your argument on this point with tax cases you are in the deepest of the deep doo doo.

        • Anonymous says:

          Thanks. Now read what I said again. Lots of connections between these areas, courts have a general unwillingness to be transparently changing their interpretations to suit political objectives. What I said is perfectly valid. There's a limit here, and the CJ is going to be making new law on this, so he can borrow concepts and interpretations from anywhere he likes (as long as he explains himself).

      • Anonymous says:

        Paying taxes has abosolutely nothing to do with obedience to a country. Many countires do not tax based on residency but on employment status or, like the US, on whether you are a citizen or not. 

        Paying taxes is solely based on made up laws that will generate revenues for the government that made them. How that country makes up those laws and decide what is fair has little to do with obedience or allegiance. 

        The UK is just one country among many, and they often don't get it right.

        • Anonymous says:

          Actually, if you are non-resident of the U.S. and are still required to file tax returns that is a good indication of a duty of obedience to the U.S. 

    • Anonymous says:

      Desperate or not, if it is the law, it is the law. Otherwise you are advocating lawlessness.