Constitution isn’t a law

I took careful note of your editorial last week, ‘Passing the buck unfair’ and decided it was time to speak out on an issue that I am very familiar with and hopefully cast some light on what is the correct procedure to deal with the constitutional questions generated by the actions of candidates in the present General Elections.

The first issue is the status of the Constitution. The Constitution is NOT a law and therefore issues arising from it, is not in the jurisdiction of either the Governor, the Attorney General or the Supervisor of Elections, to settle or to comment upon.

Matters arising from the Constitution unless stated otherwise are the sole prerogative of the Grand Court for resolution. For either the Governor or the Attorney General to offer public comment or advice at this time would prejudice their ability to act according to the Constitution in their respective roles.

This is not the first time the question of whether a candidate shall be disqualified under section 19, has arisen.

In 1972 the question arose for the first time, and a precedent was established for resolving the issue. Since I was a party to that question, I think it is incumbent on me at this time to remind the public of the precedent established then.

Following the death of the late Clifton Hunter in January 1972, who was a Member of the Legislative Assembly from Bodden Town, a by-election was called to fill the seat. Mr. Jim Bodden and myself were among those who offered ourselves to the Bodden Town electorate.

During the course of the campaign I raised the question on the public platform, of Mr. Bodden’s eligibility to be elected to the Parliament in view of the fact that it was common knowledge that he was a naturalised American citizen-and in my opinion disqualified from being returned as a member under section 19(a), which states that no person shall be qualified to be elected as a member of the Assembly who-‘is, by virtue OF HIS OWN ACT, under any acknowledgement of allegiance, obedience or adherence to any foreign power or state’

While I could draw public attention to the matter, there was no question of breach unless he was successful at the polls.

As a citizen, and a candidate I could not take the matter further nor could anyone intervene before he was elected. Mr. Bodden maintained he had divested himself of his citizenship and that was that.

Mr. Bodden was successful at the polls and at that time the issue became a matter for the Governor who is responsible for good governance in this territory. Mr. Bodden was called in and asked to produce evidence that he was NOT a naturalised American citizen and therefore eligible to be returned as a member of the Legislature.

Mr. Bodden failed to do so, and on the day he was to be sworn in, the Governor read a statement in the Parliament outlining the matter, and informing the public that he had referred the question of eligibility to the Attorney General with instructions to take the matter to the Grand Court for judicial review.

This would take some weeks since the information had to come from overseas. The Foreign and Commonwealth Office was contacted, which in turn contacted the British Embassy in Washington, which approached the American Government to enquire as to the status of Mr. Bodden’s American citizenship.

In the Judicial Review the evidence was presented that he was a bonafide American citizen and had not at any time tried to divest himself of that citizenship. The Grand Court ruled that Mr. Bodden was therefore not eligible to take up a seat in Parliament.

In the General Elections, which followed in November that same year, Mr. Bodden ran again and was returned to Parliament.

But that’s another story.

The present question of eligibility can ONLY be settled by the Grand Court and I would remind all those again who think that so-and-so can interfere in, or clarify the matter, constitutional matters in any country can only be defined or interpreted in a court of law – in this case, the Grand Court of the Cayman Islands.

It raises the question once again however, how well do we know our Constitution?

The Constitution is NOT a law. It is a document containing the fundamental principles under which a nation or country is governed. It gives birth to the entire framework required for good governance in our country. The office of Governor, the Parliament, the Judiciary, and all other components of civil society in our country, owe their existence to the Cayman Islands Constitution, and are empowered accordingly.

Mary J. Lawrence