Petition appeal thrown out

| 15/11/2013

(CNS): The Cayman Islands Court of Appeal has refused to hear an application against the chief justice's decision in relation to a challenge to the election of the education minister to her West Bay seat. Despite the arguments put forward by the legal team representing John Hewitt, who filed the original failed petition against Tara Rivers, that the decision was not in accordance with the law, the higher court found that they did not have jurisdiction. According to the Cayman Constitution 2009, the decision of the Grand Court is final when it comes to an election petition and the appeal court was unsympathetic to Hewitt's attorneys' position that the CJ had misinterpreted the constitution to such an extent that there had to be grounds of appeal.

After pointing out that the appellant had a high hurdle to cross, the three judges struck out the appeal and stated that they would deliver their reasoning in full before the end of the session. 

The judges grappled with the question of the Grand Court decision being the final decision in circumstances where a Grand Court judge had decided unlawfully, but they appeared satisfied that finality in this case stopped at the local court.

Graham Hampson, who was representing Tara Rivers at the appeal, made an application for costs, as did the Reshma Sharma from the Attorney General's Chambers. Hampson explained that costs had not been settled in the previous case as the chief justice had indicated that he did not necessarily think an order was appropriate in the original petition but that remained undetermined.

The Court of Appeal agreed to costs for Rivers but told the AG's attorney that it was a public interest issue and the attorney general's appearance should be borne by the public purse.

The appeal court ruling settles the matter of whether or not Rivers was duly elected. As such, it also  confirms the CJ's ruling that Rivers was attending an educational institution for the purposes of study when she was working as an associate lawyer with Alan Overy and that her possession and use of an American passport and her dual nationality does not constitute allegiance to another country.

This opens the door for future candidates previously excluded as a result of dual nationality or for those who have been overseas during the prescribed period before an election to still run if they can demonstrate that they had embarked of some form of training or education during their absence.

Print Friendly, PDF & Email

Category: Politics

Comments (39)

Trackback URL | Comments RSS Feed

  1. Anonymous says:

    Well, at least we now know that a law firm can also be an educational establishment.

    • Anonymous says:

      Indeed, just like a hospital can be an educational establishment as it trains doctors.  

  2. Anonymous says:

    Well by the number of comments on here, I take it this was not the popular opinion.

  3. Anonymous says:

    Now that Tara has won her case we hope that she will attend LA when such bills are being passed such as the Immigration that was recently. She could have made a difference with such destructiveness . We Caymanians are putting our trust in these Politicians and expect them to have a strong backbone for us and not to be spineless.

    • Anonymous says:

      You should be praying to God to give her health and strength to serve our country instead of calling her spineless like the sore loser you obviously are.

  4. pmilburn says:

    Tara happy for you but now lets get on with the job of helping to run this country.I realise it is a learning process for you but stick to the task at hand and dont be distracted by anything less than the job you were voted in to do.

    • Anonymous says:

      The amount of UDP money spent on this case, would have been better utilised helping some of the needy/suffering people of this country, instead of being "Power Hungry Down in West Bay" 

      The UPD should save their money for the uncoming "Big Case" in the Summer of 2014, that's the one that "WE ALL" want to see, hear and read about in the press.    

       

      • Anonymous says:

        Looks like their fund raiser fell off a cliff since the last elections. I guess they couldn't afford the kind of salary he was used to.

  5. Anonymous says:

    Aside from Anisminic issues, there is a clear Art 6 breach here.

    • Anonymous says:

      Clearly, you have no understanding of the matter. This was not a judicial review application and of course only administrative decisions, and not decisions of the courts, are subject to judicial review and so Anisminic v Foreign Compensation Commission has absolutely no relevance to the matter. You either have a right of appeal based on the Constitution and the Elections Law, or you don't.  Both the Constitution and the Elections Law are clear that you don't.

      At some point you have to accept that you have lost. A three foreign judge panel has decided thatyour appeal had no merit. Move on.

      There is no breach of Article 6.

        

      • Anonymous says:

        No, the appeal court did not get to look at the merits. It decided there was no right to appeal.  Which is what raises the Art 6 issues.  The Consitution is subordinated to the national rights norms of the UK.

        • Anonymous says:

          The Court of Appeal is a creature of the Constitution and only has such jurisdiction as the Constitution or the Elections Law gives it. The Court of Appeal does not have any original jurisdiction to hear human rights claims and so it was also folly to bring it up on this attempt to appeal.  Article 6 or "national rights norms of the UK" cannot give the Court of Appeal any greater jurisdiction than it has. 

          If you are suggesting that the Constitution itself is in breach of Article 6 then that is a matter you must take up in the High Court in London under the Human Rights Act. At best, that would cause an amendment to be made to the Constitution but would not affect the present case, and at the end of the day this was a rather desperate attempt to avoid the result of the 2013 WB election. Doesn't that strike you as a tad bit extreme? 

          • Anonymous says:

            Why would the Human Rights Act be relevant?  Having exhausted domestic remedies the Petitioner can now go straight to Strasbourg.

            • Anonymous says:

              Ummm…because the Constitution is a UK Order in Council and the UK High Court would count as a domestic remedy for this purpose.

               

              • Anonymous says:

                Try again buddy, the caselaw says otherwise. 

                • Anonymous says:

                  Ummm…please point me to said case law (which I know doesn't exist). What you are failing to understand is that if there is indeed a breach of the ECHR, it occurred when the Constitution itself, which stipulates that there is no right of appeal, was issued in London. An Order in Council is reviewable under the UK HRA. Only after the remedies have been exhausted in the UK courts could there be any right to take the matter to the ECtHR in Strasbourg. Got it, "buddy"? 

                  • Anonymous says:

                    You are so far off the mark, it is not worth wasting time with you.  If you don't know the case law on this then you don't know where to look, but the non-application of the HRA to these issues is certainly settled.  I hope you are a keen amateur.

                    • Anonymous says:

                      LOL. i.e. you cannot point to any such case law. 

                      I hope you are a keen amateur since you will be laughed out of court.

            • Anonymous says:

              The Petitioner has not exhausted all domestic remedies since no action has been filed in respect of a breach of human rights in the Cayman domestic courts. Try again.

  6. George Towner to dah bone says:

    I'm glad that the appeals court has thrown out this frivolous appeal against Min. Tara Rivers and now she can get back to dealing with her Ministries. But why on earth would they want the appeals court to attempt to have the rulling by the CJ (the highest judge in the land) on a constitution matter, overturned, anyway? In section 66 (1) of the constitution it specifically states that: Any question that a person has been validily elected as a member of the Legislative of Assembly, or whether an elected member has vacated his or her seat in it, shall be determine by the Grand Court, whose decision shall be final and not subject to any appeal. This section alone would deter me from even uttering the word appeal. I think they were testing the teeth of the appeals court and found out the hard way, that their teeth were very sharpe indeed. Now Mr Hewitt, please leave it at that and don't even attempt to have it heard at the Privy counsel level, because you might get more disappointments.  

    • Anonymous says:

      I hope he does take it further. As far as am concerned, there should have been as many sitting judges from the beginning of this trial. Why just one to opinionate the wording of the first argument? XXX

      • Anonymous says:

        The constitution states that the Chief Justice of the Grand Court has the final decision on the matter, it does not state a panel of judges. If a Caymanian lived abroad and was working to gain experience to  further her profession in her home country, why should she be denied the right to serve her country?t

        • Anonymous says:

          It is a matter of her having another passport and she is showing allegiance to another country by maintaining such a passport. 

          • Anonymous says:

            I don't understand how she keeps her passport and everything is alright and the public smiles and says lets forget about it.The legal system baffles me in this country. Has she offered to renounce her US citizenship?

            • Anonymous says:

              Because the Grand Court, the only court competent to decide the matter, has decided that it is OK to hold a U.S. passport if you were born there and the Court of Appeal has agreed that its decision is final. Got it?

              • Anonymous says:

                Not to worry. If they haven't gotten it yet they will in time.

                • Anonymous says:

                  The legal confusion is not a problem and having a politician with a US passport and citizenship being allowed to serve as a minister in the LA is a good thing. I look forward to more Americans becoming politicians, it can only help the country from the previous polician who have mismanaged the country.

                  • Anonymous says:

                    It would be even better if American politicians learned how to manage their own country first.

          • Anonymous says:

            It is a matter for the Chief Justice of the Grand Court to make a decision on.

          • Anonymous says:

            Those are two separate issues both of which have been determined from the Grand Court before which it was fully litigated and whose decision is final.

      • Anonymous says:

        Why? Just because you didn't get the result you wanted? 

  7. Anonymous says:

    Another breath of fresh air!

  8. SKEPTICAL says:

    Thank Heavens this has finally been put to rest.  CITN News this evening displayed the relevant wording of Sec: 66 of the Constitution – it showed in language that even a ten year old could understand, that there was no,Right of Appeal of the Grand Court ruling.I cannot comprehend how any attorney, especially one of those involved in the application who I had previously held in high regard, could possibly believe that there was any merit in the action.  Hewitt is another matter, but he has now had his ass handed to him on a plate.

  9. Knot S Smart says:

    Whoopaa…

  10. Anonymous says:

    Hewitt blewitt…again.

  11. Anonymous says:

    It is disappointing that such an obviously wrong judgment is not capable of legal review.