Archive for July, 2013

US experts battle it out

(CNS): Two legal expert witnesses went head-to-head Thursday when they gave their evidence regarding American law, and in particular the issue of allegiance to the United States, on the second day of the petition hearing challenging the election of Tara Rivers to the district of West Bay at the national poll in May. The chief justice heard from Professor David Cole and Professor David Rowe (left), who gave contradictory expert opinions on whether the possession and use of a United States passport constituted an acknowledgment of allegiance to that country – a narrow, but important point, on which Rivers’ possession of a US passport and her right to run for office depends.

Despite taking up most of the day, the arguments between the two men were fundamental. Rivers’ US legal expert, Professor Cole, contended that since a landmark case in the 1970's, which held that those born in the US were no longer required to swear an oath of allegiance in order to get a passport, the possession and use of it is no longer an acknowledgement of allegiance over and above the allegiance that is owed by any person born in the US.

However, the legal expert who gave evidence for John Hewitt, the petitioner in the case and husband of Velma Hewitt, the UDP candidate who came in fifth place in the West Bay district, took a contrary position. Professor Rowe said that after the 1972 case, the oath was replaced by a declaration that is on a passport application form. Anyone applying for a passport fills in the form and, as a result, the act of allegiance is now inferred through that rather than an explicit swearing of an oath, as was the case in the past.

The experts were called to the stand following the completion of the cross-examination of Rivers by Abraham Dabdoub, the leading council for the petitioner, on Thursday morning. She continued to press home the point that she believed her absence from Cayman did not prevent her from being resident, despite the points raised emphatically by the attorney over the “absence of her presence” from Cayman for most of the seven years prior to the 2013 election.

Cole was the first of the US experts to take the stand, and although he gave evidence for several hours, what he said during his time on the stand amounted to a relatively simple point. Cole took the position that, contrary to other case law, a person who is a US citizen as a result of being born in America does not make any act of allegiance by applying for and using a US passport that could be described as exceeding the existing allegiance that all US citizens owe merely by being born there. 

He explained that the landmark legal case of Woodrow in 1972 found that there were no lawful grounds to require a person to swear an oath before they got a passport and that it was unconstitutional to make them do so before they could acquire one as it undermined their freedom to travel. 

From then on, anyone born in the US no longer needed to make any acknowledgement or subjective promises regarding allegiance, Cole claimed. He said they now merely sign a declaration, which is a list of facts, and get their passport. As a result, Cole said he believed there was no additional allegiance and no own act of acknowledgment of any kind.

Cole also argued against the findings of numerous case law and precedent put to him by Dabdoub and suggested that the judges were wrong or had misunderstood the law, not just cases in Jamaica but in the US Supreme Court as well.

When Professor Rowe entered the witness box, he disagreed with the fundamental position adopted by Cole and said the declaration was the inferred act of acknowledgement.

He noted the two way street of allegiance, which is that the US government promises to protect its citizens, a benefit those who take out a US passport enjoy when they are travelling overseas. He pointed out that had Rivers encountered any problems while travelling overseas on her US passport, as she has done frequently, she would have had the protection of the US embassy in any of those countries, as she has an allegiance to the US government and it has an obligation to her.

The professor stressed that the Woodrow case was about an oath, which was merely replaced by a declaration. Rowe claimed that by applying for a passport, Rivers, like every other US Citizen, is acknowledging the allegiance she has as an American when she signs the form and makes the declaration. He said that there was no whimsical position of having a US passport as a matter of convenience, and while Professor Cole’s position was an “interesting and sophisticated opinion”, it was not one supported in case law.

Following a full day of combative arguments in the courtroom over the critical issue of whether or not having a US passport constitutes an act of acknowledgement to a foreign power and therefore disqualifies Rivers from being elected or not, the court adjourned around 5:30pm Thursday.

With the case going over its allotted two days and both leading counsel from overseas jurisdictions due to leave Cayman tomorrow, the chief justice directed the lawyers to return to court Friday at 9am in order to make their closing submissions on the issues of residency and the US passport before lunch.

Chief Justice Anthony Smellie made it clear that if he found Rivers was not eligible for election to office following the closure of the case, he would hear submissions on the second part of the petition and the remedy in a separate hearing.

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New governor arrives for ‘sneak preview’ of Cayman

(CNS): Helen Kilpatrick, the British senior civil servant who successfully interviewed to be the next Cayman Islands governor, will be arriving in the Cayman Islands Thursday for a sneak preview of what will be her home for the next three years or more when she takes up the job in September. Officials described Kilpatrick’s three-day visit as a “a low-key and informal familiarisation”. She will meet with the current governor, Duncan Taylor, and review her accommodation and new environment and is expected to meet very briefly with the local press. Kilpatrick is not only the first woman to be appointed as a governor in Cayman but also the first who has not come from the diplomatic service.

Kilpatrick is an accountant with a long career history in local government in the UK and is a public finance expert.

The local press is being given the option to submit just one question per media house in advance to GIS and CNS is inviting readers to submit their proposals using the comment section below for questions today. We will pick the best or most popular one to submit.

Related article on CNS:

Kilpatrick interviewed for job

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Panton bankrolled PPM

(CNS): The financial services minister contributed a whopping CI$183K to the Progressives’ successful bid for office, making him the top donor in an election campaign that appears to have been financed largely by the candidates themselves. According to documents detailing the 2013 General Election expenses, Wayne Panton, the former partner with Walkers made the largest contribution but in most cases the candidates rather than wealthy donors were the source of much of the more than $1 million spent on campaigns in the eight weeks before the poll. The law only requires the candidates to detail their spending from Nomination Day to the election and declare donations over $5,000.

What candidates spend and collect before that time does not have to be revealed, but according to the details of the period in question, there were only a few campaign contributions made by wealthy individuals or corporate donors.

The PPM collected $10,000 from Caribbean Marine Services, party supporter Robert Watler gave $8,200, Gene Thompson chipped in $7,000, while Chris Johnson and John McKenzie gave $5,000 each. The rest of the party’s large donations came from candidates. Aside from Panton’s major contribution, Anthony Eden threw in almost $11,000, Joey Hew stumped up over $22,000, Kurt Tibbetts put in $10,000 and Ray and Jackie Farrington gave $5,000 towards the more than $336,000 the party spent.

The UDP gave no indication of any individual donors but listed receiving more than $45,000 from “National”, a collective $5,000 from the George Town candidates and $8,000 from the West Bay team. Meanwhile, the Bodden Town UDP hopefuls chipped in the most towards the UDP bill of some $225,000, with Theresa Lewis Pitcairn and Chris Saunders donating $10k and $6k respectively.

Only Rolston Anglin from the PNA admitted to a major donation of over five thousand, which was $12,300 from Marcus Cumber.

Stefan Baraud, who ran for office in George Town as an independent, revealed a collection of corporate and individual donations amounting to around $30,000 of the more than $60 that he collected. He received $5,000 from Baraud International, $6,560 from Rafiki Ltd and Jean Louis David gave $8,200. Mark Vendervelde gave Baraud his largest individual donation of $10,000.

For more on election expense see related story on CNS and visit the elections office website www.electionsoffice.ky

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‘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 travel into 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.

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