Hewitt side asked local judges to recuse themselves
Chief Justice Anthony Smellie will hear the Tara Rivers election petition court case which is scheduled to start Wednesday.
Attorney Steve McField, acting for the petitioner – the husband of the woman Ms Rivers defeated in the 22 May general election – had objected to a permanent member of the Cayman court system hearing the matter.
The petition, brought by John Gordon Hewitt, asserts that Tara Rivers was not qualified to be nominated or elected as a member of the Legislative Assembly to represent West Bay. The petition asks that candidate Velma Powery-Hewitt should be elevated to that seat, having placed fifth in the four-seat district.
The question of whether a local judge should hear the petition was raised at the first hearing, on Tuesday, 18 June. The reason was Mrs. Powery-Hewitt’s status as a former member of the court staff; a former police officer, she then served as court bailiff until her retirement earlier this year.
Justice Alexander Henderson said if either side had any objection to a permanent judge of the Grand Court hearing the matter, the objection should be put in writing by Friday, 21 June.
Mr. McField submitted his objection in a letter, accompanied by case law on the subject. Ms Rivers’s attorneys, Graham Hampson and Paul Keeble, did not submit any letter.
On 4 July, when another pre-trial hearing was held, Mr. McField raised the question of who was going to try the case.
Justice Henderson acknowledged receiving Mr. McField’s letter and material. He explained that he had discussed them with the chief justice. “We’re satisfied a permanent judge of the court can try the case,” he said.
An alternative would have been for a judge visiting from another jurisdiction to be assigned the petition.
In a report on the 4 July meeting, the Caymanian Compass incorrectly reported both sides were satisfied that a permanent judge could try the case.
Case raises elections issues
The court challenge to Minister Rivers’s election has raised a number of issues that were already bubbling to the surface ahead of the May 2013 election.
Eligibility issues forced two candidates from the race prior to nomination day, while a third, Sharon Roulstone, renounced her US citizenship to qualify for the nomination.
Section 61[f] of the Cayman Islands Constitution Order, 2009, states that a candidate for election is qualified if “in the seven years immediately preceding the date of his or her nomination for election, the number of days on which he or she was absent from the Cayman Islands does not exceed 400”.
There are exceptions to that rule including if the person’s absence was due to pursuing their education abroad, hospitalisation abroad, overseas duties as a seaman, on an aircraft or generally in the performance of government duties.
Section 61(2)(b) of the Constitution qualifies a person for elected membership in the Legislative Assembly if that person has a close family connection with the Cayman Islands and is a British Overseas Territories citizen. According to the section, the person can qualify to stand for election if they were born outside the Cayman Islands, had at least one parent or grandparent born in the Cayman Islands and who is Caymanian and “who at the date of his her nomination for election possesses no other citizenship save for any right he or she may have to some other citizenship by virtue of his or her birth outside the Cayman Islands”.
So, it appeared that George Town candidate Sharon Roulstone, having been born in the Cayman Islands, could not keep her US passport and citizenship and run for local office, while someone else who was born outside Cayman but with the requisite family connections, could maintain that citizenship.
One such individual is her older sister, who was born outside the Cayman Islands and who at one point had to get a work permit and eventually be granted Caymanian status via application. Yet, Ms Roulstone said her sister could run for office while keeping her US citizenship and she cannot.
According to Commonwealth Parliamentary Association observers who visited Cayman during the week of the May general elections, some of the requirements that are now troubling Ms Rivers should be done away with entirely because they are “too restrictive”. The six-person election observer team led by Malta MP Mario Galea noted these types of restrictions appeared to be “unreasonably limiting” the right of all Caymanians to stand for elective office.
For instance, Mr. Galea noted the peculiar wording that a person can be disqualified if “he or she is by virtue of his or her own act under and acknowledgement of allegiance, obedience or adherence to a foreign power or state”.
“The lack of clarity in the Constitution Order, 2009, on what constitutes his or her own act led the Elections Office … to make different decisions in similar cases,” the CPA observers’ initial report noted.
The requirements of residency in the territory prior to elections is also a problem, Commonwealth observers noted.
“While to a large extent these requirements are reasonable, some of them – namely the required durations of residence in the Cayman Islands before the nomination – appear to be unreasonably limiting the right to stand for elective office,” the CPA report noted.