The Court of Appeal on Tuesday split into two phases the constitutional challenge to the chief justice’s decision in August to vindicate the election of West Bay MLA and government minister Tara Rivers.
At a Tuesday morning session of the three-member Court of Appeal, its last 2013 gathering, court president Sir John Chadwick named Nov. 15 for a “threshold” hearing to decide whether the panel has jurisdiction to hear the Aug. 23 appeal, before addressing the “substantive” matter of the challenge to Chief Justice Smellie.
If the court decides it is qualified to hear the challenge, teams for Ms Rivers and for the petitioners – West Bay’s John Gordon Hewitt and counsel – will argue on Nov. 22 whether the chief justice erred in his interpretation of the Cayman Islands Constitution when exonerating Ms Rivers.
Repeatedly emphasizing the “public interest” in the case, Justice Chadwick said it was critical for the court to make a determination “as soon as possible, during this session,” pointing out that any delay would push the question to the court’s April 2014 gathering.
The issue of Ms Rivers’s election, he said, should “be decided soon because the people of West Bay don’t know who their representative is.”
The initial “threshold” arguments will determine whether the Court of Appeal has the authority to hear cases regarding the Cayman Islands Constitution, in this case a necessary preliminary to entertaining Mr. Hewitt’s second-stage broader appeal on constitutional grounds of Chief Justice Smellie’s Aug. 9 decision.
“I am going to be arguing and would hope the jurisdictional grounds would be argued before,” said Graham Hampson of Hampson and Company, attorneys for Ms Rivers. Mr. Hampson and partner Paul Keeble appeared for Ms Rivers in August, but were led by British council and Cayman constitutional expert Sir Jeffrey Jowell, who, Mr. Hampson told the Court of Appeal, would not appear this time.
Addressing attorney Steve McField, counsel for Mr. Hewitt in his appeal and at the original August hearing, Justice Chadwick pointed out that a two-stage hearing was likely to prove economical. “If you do not succeed on jurisdiction,” he said, “considerable effort will be saved by the parties,” who will not proceed to a Nov. 21 hearing.
“Everyone would want an indication by the end of that [Nov. 15] hearing,” he said, reviewing the larger issues at stake. “The points that will arise in the substantive hearing are whether he reached a conclusion on the evidence before him – about an ‘educational institution’ and ‘US citizenship.’
“The task of the appellate court is to look at what the evidence was and if the judge reached his conclusion based on it. It is not for us to decide what we would have decided” in the August hearing, faced with the same evidence.”