Hewitt v Rivers

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

HEWITT

and

RIVERS, SOLOMON and ATTORNEY GENERAL

(Smellie, C.J.)

Grand Court, Civil Division

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

Held, dismissing the application:

(1) Any ambiguities in the 2009 Constitution, ss. 61–62 would be given a construction which avoided unduly curtailing the right to participate in the democratic process. Although ss. 61–62 were not in Part 1 of the Constitution (which contained the Bill of Rights), the rights in Part 1 were clearly linked with the democratic right of individuals to freely express their choice of candidates and to stand for election. The derogations from this right in ss. 61–62 would, therefore, be treated in the same way as a derogation from any other constitutional guarantee, particularly as it would have an impact on the rights and expectations of both individuals and society as a whole. Although the right was in conflict with the expectation that those elected to the Legislative Assembly would have an undivided loyalty to the Cayman Islands, ss. 61–62 could not be interpreted by balancing these rights and expectations against each other, as, when there was no ambiguity in the words used, the court was required to give them their ordinary and literal meaning. When there were several possible meanings, however, the court would apply a purposive interpretation according to the apparent aim underlying the constitutional provision, including the balancing of the protection of democratic rights against the requirements of a loyal Legislative Assembly (paras. 19–30; para. 34; paras. 37–38).

(2) The respondent had satisfied the requirements of residence in s.61(1)(e). The word ‘residence’ had a well-recognized meaning at common law and there was nothing in the Constitution to indicate that its framers had intended that a special meaning would apply (as would the use of the phrase ‘exclusive residence’). Provided, therefore, that the respondent met the common law test for residence (i.e. whether she had a permanent home in the jurisdiction, whether any family or business ties existed, the frequency and length of visits, and any other relevant factors), there was nothing to prevent her from being a resident of two countries at the same time. Further, as s.61(1)(e) explicitly required both residence and presence in the Cayman Islands at the same time, any ambiguity in the

provision supported the argument that residence was not tied to physical presence within the Cayman Islands. As it was clear that the applicant had met the common law requirements for residence (and her evidence as to this had not been challenged), she had satisfied the constitutional requirement (paras. 42–48).

(3) Her absence from the Islands was discounted under s.61(3) and so did not disqualify her under s.61(1)(e). The purpose of the 400-day requirement in s.61(1)(e) was to ensure that candidates had established their attachment and commitment to the Islands by not being absent for more than 400 days before being elected. However, this provision was not intended to disqualify candidates who had lived in the Islands for the majority of their lives and had temporarily left to obtain formal education, expertise or specialized training. This education, expertise or training might take many forms, including education in a commercial firm or hospital whilst receiving a salary, and there was nothing to indicate that the framers of the Constitution had intended it to be limited to formal education in a school or university. The respondent”s training had been part of well-established, well-structured and recognized training schemes for the purpose of a practical professional education, notwithstanding that she had been paid during her training. It therefore qualified as attendance at an educational establishment as a student and her absence from the Islands for more than 400 days had not disqualified her under s.61(1)(e) from standing for election (paras. 54–60; paras. 76–78).

(4) Obtaining a US passport by virtue of her US citizenship did not necessarily exclude the respondent from standing for election under s.62(1)(a). There was no common law principle which stated that obtaining and using a passport was an acknowledgement of allegiance to the country which issued it when the person to whom it was issued was already a natural citizen of that country. The allegiance owed by a natural citizen was very different from that owed by a naturalized citizen, who would be required to swear allegiance during the process of naturalization. The natural citizen, by contrast, would be deemed already to owe allegiance and the passport would therefore have no legal significance other than as a voucher and means of identification. Nor was it an acknowledgement of his or her allegiance, as he or she would already be deemed to owe it. This form of allegiance was specifically protected by s.61(2)(b) of the Constitution and it would be illogical to distinguish between an individual who owed this allegiance and who did not possess a passport and an individual who owed the same allegiance and also possessed a passport. The fact that the respondent had obtained a foreign passport did not therefore automatically disqualify her from standing for election within the Cayman Islands, although she would be disqualified if, whilst applying for the passport, she had been required to undertake an act which contravened s.62(1)(a) (para. 104; paras. 124–125; paras. 129–130; paras. 138–141; para. 170).

(5) The respondent was not ‘under the acknowledgement of allegiance, obedience or adherence’ to the United States and so was not disqualified by s.62(1)(a). Although this requirement was intended to ensure that individuals elected to the Legislative Assembly were loyal to the Cayman Islands, it had not been intended to prevent any individual who held foreign citizenship by birth from standing for election. An acknowledgement therefore required an act which provided a clear transfer of loyalty to the foreign state and had to be more substantive than a normal incident of the relationship between the respondent and the United States, such as voluntary naturalization as a US citizen, entering into its armed forces or assuming an official office. The US Constitution entitled its citizens to the right to travel and the respondent”s act of applying for and using a US passport was therefore a purely administrative benefit and a normal incident of the relationship. Although she had made certain representations during her application that she had not acted against the United States, these had not been an active acknowledgement of allegiance, particularly as the US Supreme Court had ruled that it was unconstitutional under US law to require an oath of allegiance before a passport could be obtained. The acquisition of the passport could not, therefore, be considered an acknowledgement of allegiance. Further, the word ‘obedient’ held its ordinary meaning of compliance with the commands of another, and ‘adherence’ to a foreign power had a particular legal meaning which could not apply (i.e. the giving of aid and comfort to Cayman”s ‘enemies,’ either within or without of the jurisdiction, or delivery or surrender of Cayman”s ‘castles or forts’ for reward). As there were no allegations that the respondent had acknowledged obedience or adherence under these definitions, she could not be disqualified under s.62(1)(a) (paras. 150–151; paras. 155–156; paras. 165–177).

(6) To find that the respondent was disqualified under the Constitutional requirements would unacceptably deprive her of her right to stand for election. Her election had therefore been valid and the petition would be dismissed (paras. 184–185).

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...