Lawyers focus on intent

| 27/08/2013

(CNS): The appeal filed in the court, Friday on the chief justice’s decision regarding the election of Tara Rivers focuses on the intent of the constitution and the interpretation of the words in it. John Gordon Hewitt, who is challenging Anthony Smellie’s decision that Rivers is qualified, is asking for a declaration from the Cayman Islands Court of Appeal for the true spirit, meaning and intent in the constitution regarding residency and the holding of a foreign passport. Following the news, Rivers told CNS that her lawyers were dealing with the attempt to appeal but she was focusing on what she was duly elected to do, "which is to represent and serve the people of West Bay and the Cayman Islands, and to work towards finding solutions to the myriad of complex issues facing the country.”

Challenging all of the CJ’s findings as well as the block on appeals regarding election challenges, Hewitt and his lawyers claim that there is nothing to suggest that the framers of the constitution meant that residency could be in more than one place at once or that the document provides for any legislator to have allegiance to another power.

It claims that the chief justice applied a “generous and purposive” interpretation of the word and not their normal meaning in order to arrive at his decision. The lawyers say that in his ruling he committed grave and serious errors in law by the way he interpreted the meaning of the constitution in several places and, as a result, failed to give Hewitt a fair hearing.

The appeal implies that CJ Smellie failed to apply the proper rules of construction and arrived at conclusion without evidence to support them. Local attorney Steve McField, who has filed the appeal on behalf of Hewitt, said they hoped the appeal would be heard at the constitutional position that the Grand court has the last word on election petitions.

As a result of the position by Hewitt and his legal team that the errors made by the CJ are constitutional and of great public importance, McField believes that the appeal can be heard and that appeals concerning the interpretation of the constitution cannot be ousted.  Regardless of the constitutional provision in section 66, the appeal claims that this is a questioning of errors and misapplication and not an appeal on the direct election of Rivers.

As the appeal claims that Cayman’s top judge sought to justify his decision not on the basis of law and legal precedent but byapplying this “generous and purposive” interpretation to what the lawyers say are unambiguous words, he failed to give them their ordinary meaning.

In short, the appeal claims that in regards to the residence of a potential candidate, the constitution clearly means that they should be resident here and not anywhere else, and physically present in the islands and living here. It notes that the exception for a student at an educational establishment does not mean a full time employee of a law firm who is doing some professional training. The appeal also claims that holding a foreign passport does mean that the candidate has an allegiance to another power by using it.

There are no guarantees that the appeal will get past the major hurdle in the constitution that elections issues must be decided locally and the CICA may simply dismiss the leave to appeal, despite claims by McField that if the judge is wrong in law, the right to appeal cannot be blocked.

See both a copy of the appeal and the CJ’s ruling on the election petition below.

Print Friendly, PDF & Email

Category: Politics

About the Author ()

Comments (48)

Trackback URL | Comments RSS Feed

  1. Anonymous says:

    This will make a great debate for the scholars of the University of Allen & Overy. 

  2. Anonymous says:

    My take on this is, can a Caymanian who lives in England for 3 years working as a Burger King manager in training, also be given an ok to run because he is in a place of “learning on the job”? What makes being a lawyer or a doctor anymore qualified in identifying oneself as a student? Just a thought. But I feel this ruling could be viewed as bias in the long run. Learning is learning. Jobs are jobs. And schools are schools. What I see here, is a person like any other working person, just gaining experience on the job. And if I recall correctly during the election, she did say she has been studying abroad since she was 15. I think that was plenty of time to be qualified for something. Don’t you? What I see here is someone misleading the public by playing on words. Ironically it’s an education minister too. LETS HOPE THIS DOESN’T COME BACK TO HAUNT CIG. Nip it in the bud now. It’s just a flood gate of problems to come.
    She’ll get in 2017. And Winston is capable of leading. So let it go. Steve McField is a genius with our constitution and he deserves to be credited for informing us, Joe Public, of something we didn’t know.

    • Anonymous says:

      Anyone can work at burger king (possibly apart from here), however not everyone, in fact a very few, can be top lawyers. Lots of intelligence and training needed for that…you just do not start out by being a top lawyer…you need to be trained…for years…like Doctors…

    • Anonymous says:

      You are confused. It is the Hewitts who need to let it go. Tara won. There is no right of appeal. Move on.

      Mocking fellow Caymanian's drive to be educated and trained is really despicable. She is trained and educated in a number of areas. She attended United World College at age 15 to gain her international baccalaureate. She attended Brandeis University and gained her Bachelor's degree. She returned home and worked for the Cayman Islands government for a number of years before going to Canada and studying law, then obtaining an MBA, passing the New York Bar and then training in the UK to be qualified as an English solicitor.

      The CJ did not in any way confine this to doctors or lawyers (accountants are routinely seconded to foreign offices to be trained for periods of 18 -24 months). But obviously if you are a non-professional much less training will be required. Certainly a Burger King manager will not require 3 years to be trained. 

  3. Slowpoke says:

    Well, I hope all of you that voted "yes" for this constitution, have learned that it may have been a mistake.

    And, there are a number of other issues with it, than just having a dual passport holder elected. 

    Of course, the PPM and the Churches are unlikely to want to revisit this, at any time soon.

    • Anonymous says:

      Steve Mcfield was on the band wagon with the new constitution.  Can anyone recall his ever saying that its contents was flawed?  How come now according to him, there is so much wrong with it?  Opportunist who double speak.

    • Anonymous says:

      This issue did not arise because of the new Constitution, slowpoke. All the relevant provisions have been in our constitution since 1986 (and in the case of section 62, from 1972). Whether we voted for a new constitution or not this would still be an issue.

      In any event litigating interpretation issues re the Constitution does not mean we should not have had the constitution. Interpretation issues re the U.S. Constitution are litigated all the time, but you would never hear an American say "we never should have had that constitution". Also, you will find the U.S. Supreme Court interpreting the U.S. Constitution in a way that would not have been contemplated by its framers because it has to remain relevant in a changing society. 

  4. U can't be serious says:

    Let's take a quick second to look at swearing an oath to proctect another country than the one you were "elected" to represent. 

    The CJ in his ruling failed to acknowledge several points that Tara pledged to proctect the constitution of the United States and the state of New York when she accepted admittance to that state's bar. Furthermore, having a passport means that if there was to be another "Draft" Tara or any other MLA in her circumstance could very well be going to war for the United States during their stint as your Cayman Islands' MLA. 

    Put personal feelings aside and acknowledge that the CJ's findings are rather abstract, surprsingly making Steve McFeild's application sound and well grounded.

    All-in-all Tara should have known better but she selfishly put this country's future at stake. Now every business whom provides "training" will claim to be an educational institutional putting young Caymanian law graduates at risk of never attaining what they should rightfully have an opportunity to shoot for and that is fair opportunity and pay in this industry. Not to mention all the immigration issues we are going to be straddled with shortly based on the CJ's residency ruling.

    • Anonymous says:

      Steve's application is anything but sound and well grounded. I predict that the Court of Appeal will dismiss it for lack of jurisdiction. 

  5. Knot S Smart says:

    Gentlemen of the Court of Appeal:

    TheConstitution is our Sacred Vessel that was voted for by the people, but we want to take out Section 66, in order to clarify other sections, and thereby remove an elected member of parliament, and replace her with one that was not elected, and in so doing change our Sacred Vessel that the people voted for, to one that was not voted for by the people…




    • SSM345 says:

      "The Constitution is our Sacred Vessel that was voted for by the people, but we want to take out Section 66, in order to clarify other sections, and thereby remove an elected member of parliament, and replace her with one that was not elected, and in so doing change our Sacred Vessel that the people voted for, to one that was not voted for by the people…

      Because Your Honour, that is what the people with good ol' Caymanian common sense want to happen.

      Thank you. That is all."

  6. Weapons Grade Bollocks says:

    The strict requirements were put in to please the xenophobes who fear any “outsider” running for office. Of course, it also trips up many a “real Caymanian”. Limiting the pool of eligible candidates is not the best way forward.

  7. Anonymous says:

    You don't get hung up on the type of institution. The spirit of the provision was that people who are away because they are educating themselves, in whatever form that takes, should not be prevented from serving. It was designed to make sure some of our most suitable people were not unable to give us the benefit of the education they were overseas obtaining.

  8. SSM345 says:

    09:17, "Working at a law firm never has nor ever will mean "studying at an institution of higher education"

    So perhaps you can explain the concept of "articles" at a law firm?

    • noname says:

      Might be relevant if she was doing articles. But she was an associate!


    • Anonymous says:

      Really?  So she articled for 7 years at this law firm – longest articling job I ever heard of.

      • Anonymous says:

        Try reading the judgment so you have some knowledge of the facts. Stupid posts like this are obviously based onnegative sentiment rather than facts and clear reasoning. Tara has been back in Cayman for the past 4 years; it is the previous 3 that is the issue.

    • Anonymous says:

      Quite irrelevant since she was not doing "articles" (in part because they have not been called that for over a decade in England).

  9. Anonymous says:

    I support Tara being in the LA because so many of her people want her representing them. In fact, I supported her party by voting for all the C4C candidates in George Town. However, I am still convinced that her election was invalid based on the wording of the constitution and I'm amazed that the Chief Justice reached the decision that he did. To conclude that a person can be resident in two places at the same time and that the law firm she was working at was an educational institution just does not seem right to me. I would still rather see Tara out than have the constitution be misrepresented or misinterpreted. I also don't support Velma to replace her. I don't have much faith that the Chief Justice's decision will be overturned, no matter how wrong it might be perceived to be.

  10. UH UH UH says:

    The greatest institution of higher {learning} education  is our daily life, which has no specific titles for staff, and or those whoconvey to others those skills which they have learned over the years. So quit talking about how a law firm or any other business or trade cannot be called an institute of higher learning. "These Places  All Are".

  11. Anonymous says:

    Perhaps you should try reading the ruling of the Chief Justice, and/or the Constitution. There you will learn that it says "student at an educational establishment" as opposed to "studying at an institution of higher education" that you have decided to makeup by yourself.

    • Anonymous says:

      Don't you think that you're helping his/her argument?  A law firm is definitely not an educational establishment.  UCCI is an "educational establishment", Dumb Dumb and Dumber is not; that's a law firm.

      • Anonymous says:

        A law firm may be an educational establishment in that it trains lawyers in the same way that a hospital may be an educational establishment in that it trains doctors. 

        UCCI is an institution of higher education which also falls within the broader term educational establishment.  

  12. Anonymous says:

    I agree with you 9:17. The Chief Justice clearly pandered to public opinion. That is much more of a concern that who fills a Ministerial post.

  13. Anonymous says:

    The residence and education findings are a joke.  Every neutral non-political attorney says the same things.

  14. Anonymous says:

    Puleese….Give it a break. Stop wasting our money on this cry baby BS.

  15. Anonymous says:

    Everyone keeps talking about foreign passport.  The constitution makes no  reference to foreign passport.  It talks about foreign citizenship and allegiance to a foreign country.

    • Anonymous says:

      The issue is whether renewing and travelling on a foreign passport constitutes "an acknowledgement of allegiance to a foreign state".   

  16. Anonymous says:

    This is not about Velma or Tara – this is about the country's highest justice shamelessly playing word games with matters that are far bigger than he is.  Working at a law firm never has nor ever will mean "studying at an institution of higher education" – period!

    • Anonymous says:

      That latter part is true, but you have misquoted the constitution which uses the term "educational establishment" which is considerably broader than "an institution of higher education". The Judgment uses the excellent analogy of a hospital where doctors having gained their academic qualifications do their residency and train and specialise in particular fields of medicine. There is no doubt at all that they are educational establishments for this purpose.

    • Anonymous says:

      The constitution does not use the term "studying at an institution of higher education", it uses the term "attendance as a student at any educational establishment". Educational establishment is open to interpretation, institution of higher education less so.

      • Anonymous says:

        Given that under the Immigration Law all employers are educational establishments (training Caymanians) I think we have a good case to argue that Allen & Overy was an educational establishment too!

    • Anonymous says:

      The absence provision wasn't meant to exclude our most qualified people from serving because they were away becoming even more qualified to serve, either, because if it did, that would be stupid. When you consider that, and stretch the educational establishment definition slightly (to avoid the above), you come to the conclusion (or at least the CJ and most of us do) that she was qualified.

      • Diogenes says:

        What makes you think that the absence provision are not designed to exclude people who have a wider exposure to overseas issues and have travelled abroad?  The  straight wording  says exactly that.  Where does its say that absence includes working overseas (notwithstanding Cayman's history of hard workers travelling aborad or on ships to earn money to keep familys afloat)   Nowhere.   I am afraid you have a misplaced snese of what the drafters were trying to achieve – it sure as shoot wasn't to encourage bright young eople like Tara with exposure to the wider world and modern ideas to get into government.  Its designed to keep the old and bold there – a constitution drafted by people nicely accustomed to not venturing beyond their backdoor and local electoral interests.  .  

        What you would want it to mean, what would be in the best interests of the country, and what the intent was in drafting it are not necessarially the same.  The answer if unsatisified with the current wording is to change it – not to try make black look like white or grey because reasonable people think that is what it "should" say.  

        • Anonymous says:

          Diogenes, before you pontificate about what the Constitution says or does not say it would be a good idea to read it first. Section 62(1)(d) and (e) specifically cover seamen aboard an ocean going vessel and employment as a crew member on any aircraft which clearly reflected the dependence of the Cayman economy on remittances from seafarers 40+ years ago when the constitution was originally drafted.


  17. Anonymous says:

    Sooner or later John Gordon Hewitt, or whoever it is leading him on, will find out who run things in Cayman.

    • Anonymous says:

      And who might that be?

    • Anonymous says:

      Me thinx its the man who used to run things in Cayman under the illusion that he still runs things who is behind this whole debacle.  Whenever the Hewitts open their mouths it just doesn't sound like them themselves, it sounds like the man that used to run things.

  18. Anonymous says:

    Don't you just hate people trying to prove they are right all the time, in the face of all odds, for their own gain (or in this case no gain) and without thought for the consequences or the people of Cayman?

    • KIng James version says:

      HOpe ya na fall down and pop ya head when ya was small.

      • Anonymous says:

        Really? Thanks for your wishes, most unexpected from such a source of intellect and linguistic talent!

    • Anonymous says:

      No gain? Plenty to gain mi luv … one nice MLA salary each month! lol