Hewitt v Rivers

• Jurisdiction: Cayman Islands
• Judge: (Smellie, C.J.)
• Judgment Date: 09 August 2013
• Court: Grand Court (Cayman Islands)
• Date: 09 August 2013

Grand Court, Civil Division

(Smellie, C.J.)

HEWITT

and

RIVERS, SOLOMON and ATTORNEY GENERAL

A. Dabdoub and S. McField for the petitioner;

Sir Jeffrey Jowell, Q.C., G. Hampson and P. Keeble for the first respondent;

S. Bulgin, Q.C., Attorney General, and R. Sharma, Senior Crown Counsel, for the second and third respondents.

Cases cited:

(1) Afroyim v. RuskUNK(1967), 387 U.S. 253; 87 S. Ct. 1660, referred to.

(2) Aptheker v. Secretary of StateUNK(1964), 378 U.S. 500; 84 S. Ct. 1659, considered.

(3) Att. Gen. v. Bodden (J.), Grand Ct., July, 1972, unreported, referred to.

(4) Att.-Gen. (Fiji) v. D.P.P., [1983] 2 A.C. 672; [1983] 2 W.L.R. 275, applied.

(5) Blumen v. Haft(1935), 78 F.2d 833, distinguished.

(6) Cantwell v. ConnecticutUNK(1940), 310 U.S. 296; 60 S. Ct. 900; 128 A.L.R. 1352; 84 L Ed 1213, referred to.

(7) Chaitan v. Att.-Gen., Trinidad & Tobago C.A., July 31st, 2001, unreported, distinguished.

(8) Cooper v. CadwaladarSC(1904), 7 F. 146; 12 SLT 449; 42 S.L.R. 117, referred to.

(9) Crittenden v. Anderson, High Ct. of Australia, August 23rd, 1950, unreported; noted at (1977), 51 ALJ 171, distinguished.

(10) De Jager v. Att.-Gen. (Natal), [1907] A.C. 326; [1907] UKPC 24, followed.

(11) Eichmann v. Att. Gen., Israel Supreme Ct., May 29th, 1962, unreported, referred to.

(12) Haig v. AgeeUNK(1981), 453 U.S. 280; 101 S. Ct. 2766; 69 L Ed 2d 640; 7 Media L Rep. 1545, followed.

(13) Home Affairs Min. v. Fisher, [1980] A.C. 319; [1979] 2 W.L.R. 889; [1979] 3 All E.R. 21, referred to.

(14) Joyce v. D.P.P., [1946] A.C. 347; [1946] 1 All E.R. 186; (1946), 31 Cr. App. R. 57, followed.

(15) Kawakita v. USUNK(1952), 343 U.S. 717; 72 S. Ct. 950, referred to.

(16) Kent v. DullesUNK(1958), 357 U.S. 116; 78 S. Ct. 1113, referred to.

(17) Levene v. Inland Rev. Commrs., [1928] A.C. 217; [1928] All E.R. Rep. 746, referred to.

(18) Liechtenstein v. Guatemala, 1955 ICJ 4, referred to.

(19) Maloney v. McEacharnUNK(1904), 1 CLR 77; 25 ALT 210; 10 ALR (CN) 17, distinguished.

(20) Matthew v. Trinidad & Tobago, [2005] 1 A.C. 433; [2004] 3 W.L.R. 812; [2004] UKPC 33, referred to.

(21) Maude v. LowlevELR(1874), L.R. 9 C.P. 165, referred to.

(22) Nile v. WoodUNK(1988), 167 CLR 133; 62 ALJR 381; 78 ALR 684; [1988] HCA 30, distinguished.

(23) Oppenheimer v. Cattermole (Inspector of Taxes), [1976] A.C. 249; [1975] 2 W.L.R. 347; [1975] 1 All E.R. 538; [1975] STC 91; (1975), 50 T.C. 159, followed.

(24) R. v. Barnet London Borough Council, ex p. Shah, [1983] 2 A.C. 309; [1983] 2 W.L.R. 16; [1983] 1 All E.R. 226, applied.

(25) R. v. Casement, ELR[1917] 1 K.B. 98; (1917), 12 Cr. App. R. 99, considered.

(26) R. v. Hughes, [2002] 2 A.C. 259; [2002] 2 W.L.R. 1058; (2002), 12 BHRC 243; [2002] UKPC 12, dictum of Lord Roger of Earlsferry applied.

(27) R. v. Reyes, [2002] 2 A.C. 235; [2002] 2 W.L.R. 1034; [2002] 2 Cr. App. R. 16; (2002), 12 BHRC 219; [2002] UKPC 11, dictum of Lord Bingham of Cornhill applied.

(28) Sarina v. O”Connor, tabled on November 20th, 1946, unreported (case withdrawn), referred to.

(29) Selver v. Smith, Turks & Caicos Islands Supreme Ct., January 9th, 2013, unreported, not followed.

(30) Solomon v. Scotland, 2009 CILR 403, applied.

(31) Spencer v. Yearwood, Antigua & Barbuda High Ct., June 23rd, 2003, unreported, distinguished.

(32) Stransky v. Stransky, [1954] P. 428; [1954] 2 All E.R. 536, referred to.

(33) Sue v. HillUNK(1999), 199 CLR 462; 163 ALR 648; 73 ALJR 1016; [1999] HCA 30, distinguished.

(34) Sykes v. Cleary (No. 2)UNK(1992), 176 CLR 77; 109 ALR 577; 67 ALJR 59; [1992] HCA 60, distinguished.

(35) Trop v. DullesUNK(1958), 356 U.S. 86; 78 S. Ct. 590, referred to.

(36) US v. YousefECAS(2002), 327 F.3d 56, referred to.

(37) Vaz v. Dabdoub, [2008] 4 JJC 1101; Jamaica Supreme Ct., April 11th, 2008, unreported; further proceedings, [2009] 3 JJC 1302; Jamaica C.A., March 13th, 2009, unreported, not followed.

(38) Wheeler v. Wheeler, 1996 CILR 141, applied.

(39) Woodward v. Rogers(1972), 344 F.Supp. 974; 16 Fed.R.Serv. 2D 241, followed.

Legislation construed:

Cayman Islands Constitution Order 2009 (S.I. 2009/1379), Schedule 2, s.61. The relevant terms of this section are set out at paras. 7–8.

s.62(1)(a): The relevant terms of this sub-section are set out at para. 9.

Elections-Legislative Assembly-qualifications of candidates-residency in Islands-under 2009 Constitution, s.61(1)(e), residence in Islands not to require exclusive residence and not tied to physical presence within Islands-may have multiple residencies in different jurisdictions at same time provided common law test of residence met for Islands residence, i.e. whether has permanent home in jurisdiction, existence of family or business ties, frequency and lengths of visits, etc.

Elections-Legislative Assembly-qualifications of candidates-presence within Islands-under 2009 Constitution, s.61(1)(e), requirement of presence within Islands prior to election not intended to disqualify candidates who lived in Islands for majority of their lives and temporarily left to obtain higher education or specialized training-under s.61(3), ‘educational establishment’ includes well-structured and recognized scheme in commercial firm or hospital whilst receiving salary

Elections-Legislative Assembly-qualifications of candidates-‘acknowledgement of allegiance, obedience or adherence to a foreign power or state’-under 2009 Constitution, s.62(1)(a), acknowledgement of allegiance to require clear transfer of loyalty to foreign state-must be more substantial than normal incident of relationship between citizen and state, e.g. military service or public office-receipt of passport mere incident if guaranteed to all citizens by foreign law and no extra requirement of oath of allegiance

The petitioner brought an election petition seeking to overturn the first respondent”s election to the Legislative Assembly and remove her from office on the ground that she did not meet the constitutional qualifications for election.

The first respondent (‘the respondent’) was born in the United States to Caymanian parents and, as a result, held both Caymanian and US citizenship. Based on her natural citizenship, she applied for a US passport which she used to travel on a number of occasions. After completing her post-graduate education, she spent two years training as a lawyer with a Canadian law firm and then a further three years training with a firm of English solicitors. She successfully completed both sets of

training, which involved, inter alia, classes, tutorials, instruction and practical experience, although she was paid a salary during the training periods. The respondent lived abroad during her training but retained a home in the Cayman Islands where she kept the majority of her personal belongings and important documents; she also declared herself as ‘not ordinarily resident’ in England for the purposes of income tax. After she completed her training in the United Kingdom, she returned to Cayman and was elected to the Legislative Assembly as one of the representatives for West Bay.

The petitioner (whose wife had polled the next highest number of votes to the respondent in her constituency) submitted that the first respondent did not have the qualifications for election to the Legislative Assembly as stated in the Cayman Islands Constitution, ss. 61–62. These qualifications required, inter alia, that, under s.61(1)(e), any applicant who was born to Caymanian parents outside the Cayman Islands had resided in the Islands for the 7 years preceding the nomination and had not been absent from the Islands for more than 400 days in that period. A further qualification under s.62(1)(a) required that the respondent could not be elected if, by virtue of her own act, she had acknowledged allegiance, obedience or adherence to a foreign state or power. These qualifications were intended to ensure that those elected to the Legislative Assembly were loyal to the people of the Cayman Islands and should therefore be given a strict interpretation. The respondent was in violation of s.61(1)(e) as she had been absent from the Cayman Islands for five years prior to her election. Although s.61(3) stated that a period of absence would not be counted if it was for the purpose of attending an educational establishment as a student, a strict interpretation of this would not include the respondent”s training with a professional firm from which she derived a salary. She therefore did not meet the s.61(1)(e) requirements and did not qualify to stand for election.

The respondent submitted in reply that, as the requirements in ss. 61–62 limited the democratic right of voters to elect their chosen candidate and the right of nominees to stand for election, any ambiguity in their phrasing should be interpreted in a way which enabled, rather than limited, those rights. Section 61(3) should therefore be interpreted as including practical education with a reputable establishment, even though it was not a school or university per se. The respondent”s physical absence from the Cayman Islands had not, therefore, disqualified her from election. Further, she had been a resident in the Cayman Islands during her studies, notwithstanding that she had also resided in Canada and the United Kingdom at those times. The Constitution had not provided a definition of residence and, as there was nothing to indicate that a narrow interpretation had been intended, the settled common law principle that the respondent could reside in several jurisdictions at the same time should apply.

The petitioner further submitted that the respondent had been disqualified under s.62(1)(a) of the Constitution by her acquisition and use of a US passport. Although she had obtained her passport by virtue of her

natural citizenship of the United States, possession and use of it represented a voluntary acknowledgement of her allegiance...