John Gordon Hewitt Petitioner v Tara Rivers 1st RESPONDENT Mr. Delano Solomon (Returning Officer) 2nd Respondent Attorney General for The Cayman Islands 3rd Respondent
| Jurisdiction | Cayman Islands |
| Judgment Date | 09 August 2013 |
| Judgment citation (vLex) | [2013] CIGC J0809-1 |
| Date | 09 August 2013 |
| Docket Number | CAUSE NO. 198 OF 2013 |
| Court | Grand Court (Cayman Islands) |
IN THE MATTER OF THE CAYMAN ISLANDS CONSTITUTION ORDER 2009 (‘THE CONSTITUTION’)
AND
IN THE MATTER OF A PETITION UNDER THE ELECTIONS LAW (2009 REVISION)
AND
IN THE MATTER OF AN ELECTION FOR THE ELECTORAL DISTRICT OF WEST BAY HELD ON THE 22 ND MAY 2013
and
and
Mr. Abraham Dabdoub instructed by Mr. Steve McField of A. Steve McField and Associates, for the Petitioner
Sir Jeffrey Jowell Q.C. instructed by Messrs. Graham Hampson and Paul Keeble of Hampson and Company, for the 1st Respondent
Hon. Samuel Bulgin QC, Attorney General and Ms. Reshma Sharma, Senior Crown Counsel, for the 2 nd and 3 rd Respondents
At the General Elections held on the 22 nd May 2013, the 1 st Respondent was returned as the second elected member of the Legislative Assembly for the electoral district of West Bay. She was sworn in on 29 th May 2013 and appointed Minister of Education, Employment and Gender Affairs.
The Petitioner, by this election petition, seeks to overturn her election and remove her from office on the ground that she did not meet the qualifications required for election as mandated by Sections 61 and 62 of the Constitution. If successful in so having her election declared nullified, the Petitioner would seek the further declaration that Velma Powery-Hewitt — who happens to be his wife and who received the highest number of votes among the unsuccessful candidates — was duly elected and ought to have been returned without the need for a bye-election. This would be on the basis that those electors who voted for the 1 st Respondent did so with notice of her disqualification and so had wasted their votes.
The Petition alleges two grounds of disqualification.
First, that section 61 (1 )(e) of the Constitution, which provides that a candidate for election must have ‘ resided in the Cayman Islands for a period of not less than seven years immediately preceding the date of his or her nomination for election’, has not been satisfied by the 1 st Respondent because she worked in London, England between 2006 and 2009 as a result of which she cannot, as a matter of law, be said to have resided in the Cayman Islands during that time even if she had a home here.
Second, that section 62(1 )(a) of the Constitution, which provides for the disqualification of any candidate who ‘ is by virtue of his or her own act, under any acknowledgement of allegiance, obedience or adherence to a foreign power or state’, lias operated to disqualify the 1 st Respondent by dint of the fact that she has renewed and used a United States passport to which she is entitled as a citizen of the United States of America by having been bom in that country.
Those two grounds which together I refer to as the ‘disqualification issue’ were agreed by counsel to be resolved first, with the second issue — the ‘wasted votes issue’— to be resolved immediately following my judgment on the disqualification issue if the need arose 1.
This is the judgment on the disqualification issue.
The qualifications for elected membership of the Legislative Assembly are prescribed in Section 61 of the Constitution and those conditions which disqualify a person from elected membership are prescribed in section 62.
Section 61 of the Constitution provides:
‘ 61(1) Subject to section 62, a person shall be qualified to be elected as a member of the Legislative Assembly if and shall not be qualified to be so elected unless—
(a) he or she is a Caymanian; and
(b) he or she has attained the age of 21 years; and
(c) he or she is at the date of his or her nomination domiciled and resident in the Cayman Islands; and
(d) he or she is a qualified citizen, and either
(e) he or she was born in the Cayman Islands or was born outside the Cayman Islands in the circumstances mentioned in subsection 2(b), has resided in the Cayman Islands for a period of not less than seven years immediately preceding the date of his or her nomination for election and, subject to subsection (3), the number of days in which he or she was absent from the Cayman Islands in that period does not exceed 400; or
(f) If he or she was born outside the Cayman Islands, has resided in the Cayman Islands for a period or periods amounting to not less than fifteen years out of the twenty years immediately preceding the date of his or her nomination for election, and, subject to subsection (3), in the seven years immediately preceding the date of his or her nomination for election the number of days on which he or she was absent from the Cayman Islands does not exceed 400.
(2) For the purposes of subsection 1(d), a qualified citizen is a British Overseas Territories citizen by virtue of a connection with the Cayman Islands, who either —
(a) at the date of his or her nomination for election possesses no other citizenship and is pursuing no claim to any other citizenship for which he or she may be eligible; or
(b) was born outside the Cayman Islands, has or had at least one parent or grandparent, who was born in the Cayman Islands and is a Caymanian (or if deceased would if alive have been a Caymanian at the date of nomination for election), and who at the date of his or her nomination for election possesses no other citizenship save for any right he or she may have to some other citizenship by virtue of his or her birth outside the Cayman Islands;
and in this subsection the words ‘other citizenship’ do not include British citizenship acquired by virtue of the British Overseas Territories Act 2002.’ [Emphasis supplied.]
And section 61 subsection (3) — that to which subsection (l)(e) is expressed to be subject — provides:
‘(3) In ascertaining whether a person has been absent from the Cayman Islands for the purposes of subsection (1)(e) or (f), any period of absence by reason of the following shall be disregarded —
(a) the performance of duty on behalf of the Government;
(b) attendance as a student at any educational establishment;
(c) attendance as a patient at any hospital, clinic or other medical institution;
(d) employment as a seaman aboard an ocean going vessel; or
(e) employment as a crew member on any aircraft.’
As already mentioned, section 62 prescribes those conditions which operate as disqualifications for elected membership. There are eight such conditions but only the first of them arises for consideration in relation to the 1 st Respondent. It is that prescribed in Section 62(1 )(a) and reads as follows:
‘ 62(1) No person shall be qualified to be elected as a member of the Legislative Assembly who —
(a) is, by virtue of his or her own act, under any acknowledgement of allegiance, obedience or adherence to a foreign power or state;
….’
While it is accepted that she meets the requirements of section 61(1) (a), (b), (c) and (d); the 1 st Respondent, as mentioned above, is alleged to have not met the requirements of section 61 (1 )(e) and to have been disqualified under section 62(1 )(a).
The nature of the challenge to her qualification under section 61(1 )(e) became fully apparent however, only well into the hearing of the petition. As it unfolded, it asserts that having been born outside the Cayman Islands of Caymanian parents who were bom within the Cayman Islands; the 1 st Respondent failed to meet the further requirement of subsection 1(e) of continuous residence for a period of not less than seven years immediately preceding the date of her nomination for election, having been absent from the Islands for periods in excess of 400 days during that seven year period. And further, that her absence was not to be disregarded because it did not come within the reasons permitted by subsection (3); specifically that she was not, as she asserts, absent from the Islands in London, England for the purpose of attendance at an educational establishment.
Thus, the first objection to her qualification for election I will refer to as the ‘residence objection’; involving as it does the issue of whether the Constitution permits residence in more than one place at the same time: in this case in London as well as in the Cayman Islands.
The allegation of disqualification under section 62(1 (a) arises as explained above in respect of the dual citizenship of the 1 st Respondent.
While herself a Caymanian of Caymanian parentage, the 1 st Respondent was bom in the United States of America, and, by operation of the jus soli principle, acquired citizenship by virtue of her birth in that country.
That fact by itself would not disqualify her because section 61 (2)(b) of the Constitution (as shown above in emphasis) expressly saves her right to other citizenship acquired by virtue of her birth outside the Cayman Islands.
Rather, it is asserted that, by virtue of her having since becoming an adult (and thus by virtue of ‘her own act’), renewed and used a United States passport, she is under an acknowledgement of allegiance, obedience or adherence to the United States, a foreign state, and so is disqualified by virtue of section 62(1)(a) of the Constitution.
This argument for disqualification, by way of convenient short-hand, I will refer to as the ‘passport objection’.
Both objections to the 1 st Respondent's qualification must, of course, be analyzed first and foremost, within the context of the constitutional provisions themselves. This, however, is seldom the straightforward exercise of identifying and applying the literal or ordinary meaning of words, as the...
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