BASSETERRE, ST. KITTS, MARCH 18TH 2011 (CUOPM) – Whatever the ruling by the Eastern Caribbean Court of Appeal, the Cedric Liburd vs. Eugene Hamilton “Green Card” matter is set to become a test case not only in St. Kitts and Nevis, the OECS and the Caribbean Community, but also the British Commonwealth.
“In my research, throughout the Commonwealth and to an extent of the United States, we have not come across a case where the Court has actually had to decide on a Green Card issue. Almost all the cases had to decide on people who have a second passport and the Constitutions are similarly framed throughout the Commonwealth so that this is not only going to help St. Kitts and Nevis and the OECS, but the other Commonwealth countries,” said Crown Counsel in the Attorney General Chambers, Mr. Arudranuath Gossai.
At issue is whether the Hon. Eugene Alastair Hamilton, a Permanent Resident of the United States since 2003 and who won a seat in the National Assembly of St. Kitts and Nevis in the January 25th 2010 General Elections was qualified to be nominated and elected.
Section 28 of the St. Kitts and Nevis Constitution states: (1) A person shall not be qualified to be elected or appointed as a member if he – (a) is, by virtue of his own act, under any acknowledgement of allegiance, obedience or adherence to a foreign power or state.
A judge of the High Court ruled last October that although the opposition Parliamentarian is a United States Permanent Resident, “it was no concern of the Court” and refused to invalidate his election to the lawmaking body
Mr. Goosai said that the Attorney General being the guardian of the Constitution ought to ensure that the Constitution is properly interpreted and followed.
He said the Attorney General’s Chambers is of the view that one who is a Permanent Resident of the United States or Green Card holder, “must fall under one of those headings under the Constitution as if I may say, that either allegiance, adherence or obedience, because the Constitutional framers would not have used three terms to mean the same thing.”
“They could have simply said that a person who has a foreign passport is not eligible to run for a seat in Parliament. They have not said so, and our view is that the Court of Appeal must define those three words that the judge unfortunately did not do in the High Court and so when they defined the three terms, they must then say whether allegiance, adherence and obedience and they must then say whether a Permanent Resident of the United States (Green Card holder) falls within either of those three words. It is a very simple matter it may appear but it is very important given our Constitutional history and the fact that this goes to the National Assembly itself,” said Mr. Gossai.
Mr. Gossai said the Office of the Attorney General, “strongly feel that Permanent Residence, since you cannot have two permanent residences at the same time and the trial Judge has accepted that, if you have a Permanent Residence and it is not St. Kitts and Nevis and it is the United States, definitely you don’t owe any adherence, obedience to St.Kitts and Nevis but rather to the United States – the place you are permanently residing. So we feel we have a very strong case, but on the other hand, if it is that we don’t have a strong case, it is important that the Court of Appeal, which is the Final Court, because an appeal from the Court of Appeal, cannot be appealed to the Privy Council, so the Court of Appeal has to take its time, consider the words properly and then give its meaning, because this is going to be law.”
He said an obligation by a Permanent Resident of the United States include the payment of taxes.
“You have to pay taxes. You have to maintain an unrelinquished Permanent Resident in the United States with any absence from the United States having to be temporary and the practice has been, that if you are outside the United States less than six months, questions may not necessarily arise, but if you stay beyond six months, the question may arise with immigration officers asking you how long have you been away and that has been the practice. So is maintaining that unrelinquished residence and if you are member of the House of Assembly, and let’s say there is an emergency, but you have to go back to the United States just to keep that unrelinquished status going, then definitely it is going to cause conflict and it is not what the people of St.Kitts and Nevis require,” said Mr. Gossai, adding: “If you have an Elected Representative in the House of Assembly, you want them to be here at all times to represent your interest.”
He stressed that the matter “is a very, very important case, but a lot of people think it’s just a simple point of jus having a Green Card, buts it is not as simple as that.”
