It all rests on Chief Justice Anthony Smellie now the three day battle over whether Government Minister Tara Rivers will be able to continue as a Member of Cayman’s Legislative Assembly and keep her job, came to an end on Friday (18) at 4:15pm.

Both sides gave impressive arguments and with mountains of legal case law to back up the arguments the Chief Justice’s job is a very difficult one and cannot be rushed.

As Abraham Dabdoub, the lead counsel for the petitioner, Gordon Hewitt, said, Chief Justice Anthony Smellie was the last word.

Sir Jeffery Jowell QC, lead counsel for Rivers said, “A decision for a court to intervene and overturn the will of people is one of the gravest acts anyone ever undertakes and a court should hesitate unless the decision is clear, as ambiguity cannot suffice.”

It was a difficult task for Sir Jeffery. Rivers had an American passport and was not living in the Cayman Islands for the 400 days in the seven years prior to election.

The big question is whether Rivers was away studying, which is an acceptable exemption on the 400 day requirement or she was working. Her argument was she was doing both and the ambiguity of relevant law is it doesn’t actually say the studying must be done at a recognised learning and education centre.

At first the QC did not want to go down the road of the 400 day/seven year issue preferring to tackle the issue of residency through tax case law. Residency in this law is not defined through presence or the absence of it.

However the Chief Justice was not happy with this. He even interrupted Sir Jeffery and directed him to address what the constitution says about a candidate not being absent for more than 400 days in the seven years prior to nomination.

It was obvious Sir Jeffery did not want to travel this path but he acknowledged he had to tackle the thorny issue, despite saying at first, as the boundaries had already been set by the original pleadings, he did not have to deal with it.

He argued that whilst working as an associate with Allen & Overy, a law firm in the United Kingdom, Rivers was there also for education and learning purposes.

Dabdoub argued Rivers had a work permit, had not possessed a student visa, had not attended a college or university, had been paid a salary on which she paid UK tax and had headed up various deals for the firm. This would indicate Rivers was not a student.

Earlier Rivers had argued a person could have more than one place of residence but Dabdoub was not having it. He said:

“You can have five residences if you want. The issue here is absence of presence. Someone wishing to run for office must not have been absent for seven years except in the circumstances given by the constitution. Any other interpretation would be a ridiculous one, and it would undermine the provisions and intentions of the constitution.”

Over the question of Rivers possessing an American passport because she was born there and having dual nationality, Sir Jeffery said under United States Law she had to use that passport to enter and leave that country.

“The [Cayman] constitution was never meant to turn on technical issues. It is about dual loyalties and to prevent subversion by a foreign country, not the use of a passport,” he said.

Dabdoub argued the Cayman constitution did not tolerate dual nationality for its citizens who run for election born outside of Cayman. He said, “such an idea would be tantamount to creating a special group of first class Caymanian citizens who had special privileges.”

The Chief Justice, in adjourning the proceedings, indicated if he finds in favour of the petition, there will be a further hearing regarding the remedy of her disqualification.

The petition requests the automatic return to office of the United Democratic Party’s candidate, Velma Powery-Hewitt, as the fourth elected member for West Bay.

Tara Rivers has had to swim in some rough waters during the hearing. Now we have to wait on the edge of the bank to see whether she survives or sinks.