CAYMAN JUDGE FAVOURS POLITICIAN ON DUAL CITIZENSHIP

By Tyrone Reid, Senior Staff Reporter, The Gleaner

Unlike in Jamaica’s dual-citizenship cases, the Grand Court of the Cayman Islands has ruled that a United States-born politician who renewed her US passport as an adult does not mean that she has pledged allegiance to a foreign power.

In a case that has more Jamaican connections that one, Jamaican attorney Abe Dabdoub represented the petitioner, John Gordon Hewitt, who filed the petition under Cayman’s Election Laws to unseat Tara Rivers, who won the election for the electoral district of West Bay that was held on May 22 this year.

“I am compelled to the conclusion that the first respondent (Rivers) remained domiciled and ordinarily resident in the Cayman Islands while she also resided abroad for the purposes of obtaining her full professional qualifications, and that the time so spent abroad must be disregarded by virtue of Section 61(3) of the Constitution. I am also satisfied that the first respondent, in renewing and using her United States passport as an ordinary incident of her United States citizenship acquired by birth, and a citizenship she is allowed to keep by virtue of Section 61(20)(b) of the Constitution, has not placed herself under any acknowledgement of allegiance, obedience or adherence to a foreign state or power, within the meaning of section 62(1)(a) of the Constitution. The petition therefore fails on both grounds and the relief sought in it is refused,” reasoned Anthony Smellie, chief justice of the Cayman Islands, in the conclusion of his judgment.

As it relates to wasted votes and the need for a by-election, Smellie said: “It follows that this secondary issue does not arise for determination and so the declarations sought in that regard must also be refused.”

After perusing the judgment handed down by the Cayman Islands’ chief justice, noted Jamaican attorney-at-law Bert Samuels told The Sunday Gleaner that the constitutional provisions of both territories are similar and the findings by both chief justices are also quite similar.

“The judgment is consistent with Chief Justice (Zaila) McCalla’s judgment in the (Daryl) Vaz matter. It is just that the outcome is different,” said Samuels.

He explained that a decision was arrived at by examining the law and facts and the latter might have been what caused the variation in Smellie’s ruling.

“He had a different set of facts (to analyse),” said Samuels.

In February 2009, the Court of Appeal ordered a by-election in the constituency of West Portland to select a new member of parliament. In doing so the Appeals Court upheld the Supreme Court ruling in the dual-citizenship case involving Vaz, the Jamaica Labour Party’s West Portland MP, and Dabdoub, who had been the candidate for the People’s National Party.

Vaz not eligible to be a member of parliament

On April 11, 2008, McCalla ruled that Vaz was not eligible to be a member of parliament because he was a US citizen at the time of the election in September 2007 and that there should be a by-election in the constituency of West Portland, which Vaz represented in Parliament.

The chief justice ruled that by virtue of the fact that Vaz obtained an American passport when he was an adult and travelled on it, he had pledged an allegiance to a foreign power.

But Vaz took issue with that aspect of the ruling and filed an appeal in the Court of Appeal. Dabdoub had appealed against the chief justice’s ruling that there should be a by-election.

He appealed on the grounds that he should have been made MP since he was the only duly nominated candidate.

The ruling in the Cayman Islands did not go unnoticed by Vaz.

When contacted, he told The Sunday Gleaner that his legal team remained convinced that the argument it put forward was legally correct.

“However, you respect fully any decision taken by the Jamaican courts. The situation, as it relates to my dual citizenship, is now history and I am still committed to the position that I was advised prior to the election that my situation, as it relates to dual citizenship, was perfectly legal,” said Vaz.

The West Portland MP said he would do anything required to ensure that he is legally fit to represent his people and country. However, Vaz admitted that the multi-million dollar hit to his finances left a mark.

“The only issue that comes to mind is the massive cost to settle legal fees of $25 million … and a by-election campaign. My only regret is the monetary cost,” said Vaz, who also noted that he was mindful of the hit taxpayers had to take to fund the by-election. “However, I put all that behind me and continue to serve without any ill-feeling.”

Efforts to get a comment from Dabdoub on the judgment handed down in the Cayman Islands were unsuccessful.

For more on this story go to:

http://jamaica-gleaner.com/gleaner/20130901/lead/lead6.html

GANGA ILLEGALLY IMPORTED TWICE

Joseph St. Aubryn Hill (23) was remanded in custody on Thursday (Aug 29) by Magistrate Valdis Foldats for illegal landing and importation of ganga twice.

The first time was on Aug. 17^th when he was accused of bringing in 50lbs of ganga and the second time on Aug 24^th it was 100lbs.

The court heard that Immigration officers conducted an operation on Aug. 27^th on Farrington Lane in West Bay, where the accused was present and on being asked about his status Hill told them he had been fishing off Westmoreland, Jamaica, had engine problems and his boat drifted to Cayman.

After being arrested and cautioned he told officers the following day he had arrived on Aug. 24^th to import 100lbs of ganga but his boat had ran out of fuel so he threw the drug overboard into the sea. He confessed to importing 50lbs of ganga on Aug. 17^th and had handed it over to the intended recipient.

The matter is set for mention again on Tuesday (3).

TESTAMENTARY CAPACITY, AND HOW TO SHOW IT

Article by Solomon Harris

How do you prove you had what it took?

As a Testator, you are not going to be around to put the record straight on your ability to make your Will.  It may be obvious to you and to the lawyer drafting your Will that you are still in possession of your faculties, but if you are unwell, or perhaps choosing to act in an arbitrary fashion, it will be important to leave sufficient evidence of your mental capacity to defeat any potential challenge to your wishes being carried out after your death.

Court challenges on Capacity, Knowledge and Approval

Elsewhere on this site we have looked at a case from the Court of Appeal in Hong Kong, where medical evidence organized by the Solicitor drafting the Will was largely ignored because the doctor had failed to keep a contemporaneous note of his examination.  If other professionals could not assess the quality of the examination, the Court could not verify that it had been carried out properly.  Other cases this year in the English Courts, up to the Court of Appeal, have looked at capacity and medical evidence, and how much the Testator knew the effect of what he or she was doing by the Will, and approved of the effect.  Rather than review what went wrong, here we look at some steps that you should consider taking if there is any likelihood your wishes may be challenged.

So what is “Testamentary capacity”?

The test of capacity is set out in an English law case from 1870, Banks v Goodfellow and has four parts.  A Testator must:

(1) understand the nature of what he is doing and its effect;

(2) understand the extent of the property of which he is disposing;

(3) understand and appreciate any claims on him which he should satisfy; and,

(4) in approaching (3) he should not be subject to a disorder of the mind which would influence his decision such that he makes a disposition which he would not otherwise have made.

When might you need to prove it?

If you have been ill, or on medication which might affect your ability to understand as well as you once did, if there are signs that your memory is failing, or something (say a bereavement) has profoundly shocked you or clouded your judgment, then you may need to have your legal professional look at getting a doctor to make an assessment of your mental ability, and provide a certificate that you still have what it takes.  You may not want to do this out of concern for your welfare (no one would want a doctor to find they are incapable) or because you do not see the value in the expense.  There is no hard and fast rule, and if your Will is straightforward then even if you are not entirely yourself, it may not be necessary.  But seek the advice of a trusted legal professional before you dismiss the idea.

Medical evidence

The evidence of an experienced lawyer that his or her client had the required capacity at the time the Will was drafted, drawn, executed and witnessed can be persuasive, but it does not guarantee that the Courts will find that you were capable.  It will certainly help if the Will is challenged simply on the basis of restrospective medical evidence from doctors who never met you, but a contemporaneous medical examination that is properly recorded is stronger.  When put in the same room as the Testator, even experienced lawyers cannot be relied upon to judge mental capacity as well as a doctor.

Friends and family

Any attempt to test for mental capacity is bound to be fraught with problems – some people suffering with dementia may be able to appear capable to friends and members of their family in short bursts of normal conversation.  That does not mean that they could meet the requirements of Banks v Goodfellow as to the nature and effect of their actions, or as to their obligations.  Others may drift from capacity to incapacity from day to day, and strong evidence would be needed to show that the Testator had capacity at the time the Will was executed.

Disorder of the mind

Medical evidence, properly prepared is particularly important if, on the face of it, the Will seems to be irrational.  Leaving everything to the cat’s home may seem like a fun threat, but if it means family members are left out of the Will entirely, then the Will is likely to be challenged.  Without medical evidence or evidence on the face of the Will that you are not suffering from “a disorder of the mind” under limb 4 of Banks v Goodfellow, it will be hard for the cat’s home to prove that you acted rationally.

Do it right

The best approach is to get a lawyer to draft your Will and advise you whether you are likely to need any medical evidence of your capacity.  The point of a Will is that it disposes of your property in the way you wanted.  It would be a shame to see your wishes set aside – and let the pussy cats go cold and hungry.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

STATE DEPARTMENT TO ENHANCE SECURITY BETWEEN PORTMIAMI AND CARIBBEAN

From Caribbean360

PortMiami, a hub for Latin and Caribbean travel and trade will provide training and mentoring on anti-crime and port security matters to its counterparts in the Caribbean.

MIAMI, United States, Thursday August 29, 2013 – The United States’ Department of State has signed a partnership agreement with PortMiami aimed at helping to enhance port security in the Caribbean.

As enforcement pressures increase against drug traffickers in Mexico and Central America, William R. Brownfield, assistant Secretary of State for international narcotics and law enforcement affairs, said on Wednesday that it is logical that criminals will try to resurrect old drug routes through the Caribbean.

He, therefore, urged regional governments to begin preparation to combat the threat.

Brownfield said his goal is to build partnerships and relationships now, so that as “the inevitable laws of market economics” come into play in 2014 to 2016 with traffickers seeking the paths of least resistance, “we’re not caught with our pants down.”

He told the Miami Herald that the Caribbean drug trafficking routes of the 1970s and 1980s are “gray-haired in some respects”, but “they are still around, and will begin to look more attractive” to traffickers as law enforcement puts more of a squeeze on Central American routes.

Under the arrangement, Brownfield said PortMiami, a hub for Latin and Caribbean travel and trade will provide training and mentoring on anti-crime and port security matters to its counterparts in the Caribbean. The partnership will also give ports in the Caribbean access to the technology, experience and personnel at PortMiami.

The top State Department official noted that, in the 1970s and 1980s, Miami was at the center of the Caribbean drug trade.

“We have been there before, and we did learn some lessons,” he said, adding that, among the things Miami can share with its counterparts is its expertise in cargo container inspection and control programs.

When such programs work, Brownfield said, “they work for everyone,” eliminating long port delays that can tie up shipments for two to three days as inspectors search for drugs and other contraband.

He said PortMiami would function more efficiently if ports around the Caribbean have better procedures and better inspection techniques.

“If you want your port, tourism and cargo to flourish and grow, it’s in your interest to have a port that’s compatible” with one of the largest ports in the southeast United States,” he said. (CMC)

For more on this story go to: http://www.caribbean360.com/index.php/news/949442.html#ixzz2dVClfHPd