Editorial on August 26: On appealing the Rivers ruling

Like many others, we at the Compass were somewhat surprised at Chief Justice Anthony Smellie’s judgment regarding Tara Rivers’s eligibility to stand for office in the district of West Bay. Frankly, the “office pool” was betting that Justice Smellie would rule differently and, ultimately, order a by-election in the district.

Nevertheless, we refrained from editorializing on the matter largely because of two considerations: First, it was our understanding that the ruling was final and not subject to appeal, and, second, we were wary of a concept in place in Cayman that limits, vaguely, making comments that might be interpreted as “scandalizing the judiciary.” We knew we were treading into murky, unmapped and possibly litigious territory.

In fact, we took legal advice on the limits, or lack thereof, of “scandalizing the judiciary” and came away still uncertain and unsatisfied. Our attorneys assured us we had considerable latitude in commenting on court rulings but advised that we do so “with diplomacy.”
Going forward, we will attempt to clarify further, hopefully with the guidance of Mr. Smellie himself or the attorney general’s chambers, the boundary at which freedom of speech collides with the law in these circumstances.

In the matter of the Rivers judgment, however, attorney Steve McField, representing John Gordon Hewitt, has now appealed the chief justice’s judgment despite Section 66 of the Constitution, which states that such rulings are “final, and not subject to any appeal.”
Mr. McField, however, on behalf of his client, suggests that the limitation on appeals applies only to elections – not to the interpretation of the Constitution itself. His appeals document filed with the court on Friday, argues:

“Section 66 of the Constitution of the Cayman Islands provides that the decision of the Grand Court is final in so far as the determination of the question of whether a person has been validly elected a member of the Legislative Assembly but 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 appeals document includes a long litany of claims that challenge the chief justice’s interpretation of the Constitution, including, notably, the following:

“[T]he learned chief justice fell into further error by applying ‘a broad purposive meaning’ to the words ‘educational establishment’ in order to qualify Allen & Overy, a firm of solicitors, as an educational establishment,” adding that the chief justice “fell into grave error by failing to appreciate, comprehend or understand that the natural and ordinary meaning of ‘an educational establishment’ is ‘an institution dedicated to education’ and further fell into error in concluding that a firm of solicitors (Allen & Overy) 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.”

The Compass will be following and reporting on this case with great interest as it proceeds through the appeals process. 

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