Court rejects challenge to Rivers’s eligibility

The Court of Appeal late Friday denied a petition to overturn the Grand Court’s August vindication of Cabinet minister and West Bay representative Tara Rivers, ending long-standing uncertainty about her election six months ago and her eligibility to serve public office.

The three-judge panel ruled it did not have “jurisdiction” in the case, rejecting efforts to re-open the controversy by claiming Chief Justice Anthony Smellie had erred in law, misinterpreting the Cayman Islands Constitution in his Aug. 9 decision clearing Ms Rivers of any wrongdoing.

After a day of arguments from attorneys for “Petitioner,” John Gordon Hewitt – local lawyer Steve McField, Jamaican litigator Abraham Dabdoub and former Attorney General of Jamaica Ransford Braham – and those for “Respondent” Ms Rivers – represented by Graham Hampson and partner Paul Keeble of Hampson and Company – the panel ruled they did not have authority to rule on “threshold questions” raised by the constitutional challenge.

In a defensive position from the start, Mr. Hewitt, the justices said, had been charged by the court “to show cause why [his] application should not be struck out.”

Because his counsel was unable to cross that threshold, they said, “we are satisfied the court does not have jurisdiction on the matter, and we will strike out the appeal.” President Sir John Chadwick promised a written decision, “probably on Thursday,” the penultimate day for the court’s 2013 sessions.

Justice Chadwick and fellow judges Elliott Mottley and Sir Anthony Campbell repeatedly fought off arguments from Mr. Dabdoub that sought to skirt the Constitution’s Section 66, which says questions about the validity of anyone’s election to the assembly, “shall be determined by the Grand Court, whose decision shall be final and not subject to any appeal.”

Claiming the section was restricted to the determination of elections, Mr. Hewitt’s team sought to challenge Mr. Smellie’s verdict on questions of constitutional law, saying he had “committed grave and serious errors,” of interpretation and application, meaning his verdict was “not a determination within the meaning and context of Section 66 of the Cayman Islands Constitution,” rendering it “wrong in law and a nullity.”

“Our contention is that he misunderstood and misapplied everything,” Mr. Braham told the Court of Appeal.

Questioned about those errors, Mr. Dabdoub repeatedly cited particular elements in the original Grand Court case: Whether Ms Rivers’ ownership of a U.S. passport compromised her loyalty to the Cayman Islands, and whether her prolonged absences violated a seven-year legal limit on time abroad.

Calling Chief Justice Smellie’s determination “ridiculous,” Mr. Dabdoub pointed to his declaration that London law film Allen & Overy was an “educational institution.” Ms Rivers was an associate at the firm between 2006 and 2009, holding a work permit, collecting a salary and attending in-house training seminars for employees.

“So if I attend Madame Salima’s nightclub in order to learn belly dancing, does that make the nightclub an ‘educational institution’?” Mr. Dabdoub asked. “His decision must be in accord with law, not by some whim or fancy.”

Justice Chadwick, however, rebutted the assertion: “The Constitution says the Grand Court decision is final, that it is a ‘no-go’ area for us.”

Lifting the discussion from abstractions about legal interpretation, Justice Chadwick challenged Mr. Dabdoub to name Mr. Smellie’s legal errors: “How did the chief justice fail to make a determination in accordance with the laws? You can’t say he failed to accord with the law just because he reached a conclusion with which you disagree.”

Underpinning the sentiment, Justice Mottley also challenged Mr. Dabdoub: “What you are asking the court to do is to get at the points the chief justice determined. You are asking the court to re-litigate” the case.

In his submission, Mr. Hampson declared simply that “once the Grand Court has ruled, then that is it. The law is blindingly clear and this court has no jurisdiction.”

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