It is Not Over-Back to the Courts for Liburd Vs Hamilton

According to a release on Tuesday 15th March, from the ruling Labour Party Administration, through the Communications Unit of the Office of the Prime Minister, it was stated that the Eastern Caribbean Court of Appeal will this week hear the appeal by former government minister and Labour Party candidate for St. Christopher 8, Mr. Cedric Liburd challenging the ruling of High Court Judge Madam Justice Indra Harriprashad-Charles.

In a previous hearing, Justice Harriprashad had dismissed Liburd’s petition challenging the eligibility of Eugene Hamilton, to stand as a candidate to be elected to the St. Kitts and Nevis National Assembly.

Papers filed in the High Court on behalf of Mr. Cedric Liburd by Dr. Henry Browne, listed several grounds of appeal and claimed that Justice Harriprashad-Charles failed to appreciate the effect of “pleading in the alternative,” pointing out that Counsel for the Petitioner told the Court that: “The Answer to the Petition in no way demurs or joins issue with the fact that the First Respondent is a permanent resident alien of the United States of America…  On the averment that he is the holder of a United States Passport, that Averment in the Petition must fail.

Mr. Liburd’s legal team is contending that the sole issue therefore is whether the permanent resident alien status is such in law as to prohibit him under Section 28 (1) (a) of the Constitution from standing as a candidate in the general election spoken to.”

The Appellant claims in his Appeal that paragraphs 18 – 27 of the Judgement are misconceived in that the tremendous and overwhelming consideration by the Learned

Judge of an allegation that Mr. Hamilton was the holder of a United States Passport when he was nominated as a Candidate on 15th January, 2010 for the General Election in St. Christopher & Nevis which took place on 25th January 2010 deflected the Judge’s mind from a true and full consideration of the meaning to be given to Section 28 (1) (a), of the Constitution of St. Christopher and Nevis.Dr-Henry--Browne

However, Mr. Hamilton has on numerous occasions indicated that he is not, and was not, a holder of a US passport at the time of his nomination for last year’s election. No evidence was also produced in the first trial to challenge Mr. Hamilton’s position, that he does not carry a US passport. Hamilton however, had always volunteered that he does hold a US Green Card, but that this status, in no way causes him to owe allegiance to the United States.

It is also the argument of Dr. Browne that another ground of appeal contends that the Learned Judge in the context of this case failed to provide answers to the three main questions running throughout the Petition.

The questions are: “Does the holder of a United States Permanent Resident status, such as Mr. Hamilton the 1st Respondent was at all material times, cause him to owe “allegiance” to the United States of America? Does the holder of a United States Permanent Resident status, such as Mr. Hamilton was, at all material times, cause him to owe “obedience” to the United States of America?  Does the holder of a United States Permanent Resident status, such as the 1st First Respondent Mr. Hamilton was at all material times, cause him to owe “adherence” to the United States of America?”

The Appellant states that the failure of Justice Harriprashad-Charles to answer these questions separately resulted in an error of law. Dr. Browne points out that the Learned Judge found, as a matter of fact and law, that Mr. Hamilton was the holder of a permanent resident alien status in the United States at the time of his nomination, but yet failed to appreciate the effect and impact in law that an individual cannot have two permanent residences one and at the same time.

The Appellant also contends that the Learned Trial Judge erred in law in failing to appreciate the fact that Mr. Hamilton at all material times had/has permanent resident alien status in the United States of America leads to the conclusion that he has chosen the United States as his domicile of choice thus triggering a result contemplated by Section 2 of the Constitution.

“Given the Judge’s findings and observations in paragraphs 45 & 65 of her Judgment it was incumbent on the Learned Judge to come to a finding that the 1st Respondent was caught within the jaws of Section 28 (1) (a) of the Constitution,” said the Appeal document, which also stated that Justice Harriprashad-Charles failed to appreciate the subjective intent of Mr. Hamilton when from the evidence it was clear that he remains outside of the United States of America within the period allotted by United States law in order not to jeopardize the validity of his permanent resident status in the United States thus entitling him to certain rights and privileges with their concomitant duties and obligations,” the Appeal document states.

Mr. Liburd and his lawyers are also claiming that Justice Harriprashad-Charles failed to appreciate the significance of the fact that no effort has been made by the Government of the United States of America to revoke the permanent resident status of Mr. Hamilton in the United States of America and thus presumptively suggests that the United States Government is satisfied that any absence from the United States is temporarily only and as such Mr. Hamilton is caught by Section 28 (1) (a) of the Constitution.

The Appeal documents state, “The Learned Judge failed to take any or any sufficient account of the 1st Respondent’s frequent trips to the United States of America, the fact that his family lives permanently in the United States of America and that his wife works and lives there permanently – And that given the first Respondent’s temporary absences from the United States of America that the 1st Respondent has evinced a clear and unmistakable intention by virtue of his own acts under an acknowledgement of allegiance, obedience or adherence to a foreign power or state namely the United States of America.”

Another ground of appeal argues that the Learned Trial Judge failed to consider the disjunctive formulation of the reference to “allegiance”, “obedience” and “adherence” in section 28 (1) (a) of the Constitution and to evaluate the evidence in relation to each separately. Pointing out that Justice Harriprashad-Charles finding that: “Unquestionably, by being the holder of a green card, Mr. Hamilton enjoys certain rights and privileges in the United States, it cannot be gainsaid that with these rights and privileges comes concomitant obligations and responsibilities particularly if Mr. Hamilton may choose to become a United States citizen later,” the Judge failed to examine or apply the provisions of section 28 (1) (a) to this factual finding.

The Appellant also contends that the Learned Trial Judge misdirected herself in holding that no case was cited to the effect that “allegiance” may be owed to a State by a non – citizen such as a person who travels on a passport of a foreign state or who is so associated with a foreign state that he or she has benefits, privileges or protection of the foreign state and that there may be no such authority although several such authorities were cited to her.

It is the claim of Mr. Liburd’s team that, “The Learned Trial Judge erred in treating the fact that a lawful permanent resident remains a foreign national who retains his or her nationality and passport and can be removed from the United States as decisive although such a person may nevertheless acknowledge same “Allegiance”, “Obedience” or “Adherence” to the United States” and that the “Learned Trial Judge erred in law and or misdirected herself when she held that costs follow the event and that the Appellant will pay costs to the Respondent to be assessed if not agreed.”

The Appellant further contended that the Learned The Learned Trial Judge erred in law and/ or misdirected herself when she refused to and failed  to acknowledge / or failed to consider and /or follow the decision of the Court in Civil Appeals Nos. 11 and 12 of 2006 between Rupert Herbert et al v Lindsay Grant et al where it was held that “the public interest in an election petition is a factor that a judge may consider in deciding whether to award costs and that she erred in law or misdirected herself when she failed and/or refused to follow and /or consider the principles espoused in the recent case of Claim No. SKBHCV 2010/0026 between Lindsay Grant v Glen Phillip et al where Madam Justice Harriprashad – Charles ruled that “The respondents have asked for costs. However, in matters of this ilk, the court should be hesitant to award costs against the suppliant citizen seeking the sanctuary of the courts. As a result, I do not think that it is fair and reasonable to award costs against the petitioner.”

The Orders seek the concurrence of the Appeal Court to uphold this Appeal, set aside the Decision and Order as to costs of Madam Justice Harriprashad-Charles.

Other parties named are Supervisor of Elections, Mr. Leroy Benjamin and Returning Officer, Mr. Andy Blanchette.

 

 

 

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