Lawyers for John Gordon Hewitt on Friday asked the Cayman Islands Court of Appeal to overturn Chief Justice Anthony Smellie’s Aug. 9 decision vacating election challenges to West Bay legislator and Cabinet minister Tara Rivers.
In an 11-page, Aug. 23 petition, attorney Steve McField names Ms Rivers, Elections Office returning officer for West Bay Delano Solomon and the attorney general as “respondents,” citing nine “grave and serious errors,” committed by the chief justice in his Grand Court judgment, “rendering the determination arrived at by him a nullity and not a determination within the meaning and intent of Section 66 of the Constitution of the Cayman Islands.”
In a 10-part final section, Mr. McField asks the Court of Appeal for “a declaration as to the true meaning, spirit and intention” of relevant sections of the Constitution, pointing to their interlinked clauses.
He explicitly asks the Court of Appeal to review arguments regarding Ms Rivers’ U.S. citizenship and passport and the implications for constitutional proscriptions against Legislative Assembly candidates acting “under any acknowledgement of allegiance, obedience or adherence to a foreign state or power;” and a reconsideration of Chief Justice Smellie’s judgment that Ms Rivers’ London-based Allen & Overy law firm qualified as an “educational establishment.”
Citing constitutional phrases referring to “an institution dedicated to education,” Mr. McField claims that “the true, ordinary and natural meaning of the [Constitution’s] words ‘attendance as a student at an educational establishment’ does not include ‘attendance as a student at a law firm.’”
The petition also confronts the Constitution’s section 66, saying that the chief justice’s decision regarding the validity of a candidate’s election to the assembly is “final, and not subject to any appeal.”
Claiming that the proscription on appeals applies only to elections, and not the Constitution, Mr. McField wrote the complaints in the original petition were grounded in the Constitution, “the interpretation of which [is] of great public importance and public interest, and the jurisdiction of the court to hear appeals touching and concerning the interpretation of constitutional provisions cannot be ousted.”
Section 66, he writes, means that while any decision regarding valid elections is final, an appeal based on constitutional interpretations remains open to appeal: The clause “does not prohibit the questioning of errors and misapplication of constitutional provisions, the meaning and intent of which are misinterpreted and distorted, thereby rendering any determination a nullity.”
The appeal comes 14 days after Chief Justice Smellie’s verdict in the July 17-19 Grand Court hearing in which he rejected Mr. Hewitt’s original June 12 challenge to the May 22 general election of independent candidate Ms Rivers – and, by extension, her subsequent May 28 appointment by Premier Alden McLauglin as his PPM party’s minister for education, employment and gender affairs.
Mr. Hewitt, husband of West Bay candidate Velma Powery-Hewitt, who finished fifth in the four-seat district, claimed Ms Rivers’ election was invalid because she carried a U.S. passport and had been absent from the Cayman Islands between 2006 and 2009, working for London law firm Allen & Overy, contravening constitutional requirements that assembly candidates reside in Cayman for seven continuous years prior to nomination.
In a carefully worded 57-page decision the chief justice dismissed both claims, relying on expert testimony that American passports were merely “incident” of U.S. citizenship, and that neither placed their owners under “acknowledgment of allegiance, obedience or adherence to a foreign power,” essentially dismissing fears of divided loyalties.
Similarly, he declared Allen & Overy an “educational establishment,” citing its pervasive training program, thereby qualifying under constitutional exceptions to the seven-year rule for education, medical reasons, national service or employment with airlines or as a merchant seaman – and vindicating Ms Rivers claim of “dual residency” in both Cayman and London between 2006 and 2009, absent from her West Bay home only for educational purposes.
Mr. McField opened his appeal with a nine-point section challenging the chief justice’s “findings of law and fact,” forming the basis of Friday’s petition.
Insisting throughout that the Constitution must be closely read, and its “words must be given their ordinary and natural meaning, which must be strictly interpreted to give effect to the [document’s] meaning, spirit and intent,” Mr. McField rejected Chief Justice Smellie’s embrace of a “generous” and “purposive” interpretation of the Constitution, saying it was “wrong in law and must be avoided.”
The initial citation objects to Mr. Smellie’s conclusions regarding residence in the Cayman Islands, rejecting his Aug. 9 declaration that “nothing in these provisions suggest that the framers of the Constitution intended to preclude the settled common law meaning of residence as allowing for abode in more than one place at the same time.”
In a 23-point “Grounds for Appeal”: section, Mr. McField answers the claim, saying the judgment creates two classes of Cayman citizens with varying rights, one for citizens born in a foreign state and who may serve in the assembly, and another, born in Cayman and later acquiring foreign citizenship, and who may not serve in the assembly – a situation confronted by George Town candidate, locally born Sharon Roulstone, who was renounced her U.S. citizenship, gained through her father’s American birth, in order to run in May.
“The residence referred to in the Constitution,” wrote Mr. McField, “is a requirement of being physically present in the Cayman Islands for the period set out in Section 61, subject to the exceptions set out therein.”
Ironically, in exonerating Ms Rivers in August, the chief justice cited a 1996 Cayman Islands Court of Appeal decision in which Justice George said, “ordinary residence could be maintained in more than one jurisdiction if the intention to reside in each place in the ordinary course of life were shown, and its continuity is not broken by temporary and occasional periods of absence from one jurisdiction.”
Among the petition’s broader challenges is the Grand Court claim that Ms Rivers attended the Allen & Overy “educational establishment” as a student and trainee solicitor.
“The learned chief justice fell into error … by ignoring the clear and unambiguous confirmation by Allen & Overy that [Ms Rivers] was employed as an associate … where she in fact led teams in negotiations conducted on behalf of the firm,” Mr. McField wrote, alluding to a June 5 Allen & Overy letter confirming “Tara Rivers was employed by this legal firm as an associate.”
Chief Justice Smellie “further fell into error,” Mr. McField wrote, “by concluding that a firm of solicitors can qualify as an educational institution merely on the basis that it provides in-house training for its employees, which its employees may attend as part of their employment.”
ony Smellie’s ruling in the Tara Rivers eligibility case. – PhotoS: Chris Court