BASSETERRE, St. Kitts, March 30th 2011 (CUOPM) – The Eastern Caribbean Court of Appeal will hear the Cedric Liburd vs. Eugene Hamilton “Green Card” matter in Antigua mid- May.
This has been confirmed by Crown Counsel in the Office of the Attorney General, Mr. Arudranuath Gossai.
He said that the matter will be up for hearing before the Court of Appeal sitting in Antigua on Wednesday 18th May, 2011 at 9 a.m.
A three-judge Eastern Caribbean Appeal Court panel had postponed hearing arguments in March to determine whether opposition lawmaker, the Hon. Eugene Hamilton, a Permanent Resident of the United States, is eligible to sit in the St. Kitts and Nevis National Assembly, after court procedures were not followed by two of the three parties in the matter.
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.”
In the lower court, although High Court Judge, Her Ladyship Indra Hariprashad-Charles found that the Hon. Eugene Hamilton told lies to the United States, Government every time he attempts to enter that country, “it is not a concern of this court.”
“In order to preserve that Green Card, it is mandatory that Mr. Hamilton maintains an unrelinquished lawful permanent resident status in the United States with any absences from that country being temporary. This is the defining characteristic of lawful permanent resident status in the United States. Mr. Liburd insists that in applying for and obtaining the grant of lawful permanent residence, Mr. Hamilton has undertaken to maintain an unrelinquished lawful permanent residence status in the United States,” Justice Hariprashad-Charles had ruled on October 13th 2010.
Mr. Liburd had filed the Election Petition on the grounds that Mr. Hamilton was a United States citizen or a Permanent Resident of the United States (Green Card Holder).
“I dare say that given the media hype which this case has generated, I wonder whether Mr. Hamilton is still the holder of a permanent resident status in the United States even though he is in physical possession of a valid green card. He will know his fate when and if, he attempts to re-enter the United States,” Justice Hariprashad-Charles said in her ruling delivered via teleconference from Tortola.
“I said before, being a Permanent Resident is a “privilege” and not a right. The United States government can take away your permanent resident status under certain circumstances,” said Justice Hariprashad-Charles, who heard arguments at the trial in July and August this year.
“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 come concomitant obligations and responsibilities particularly if Mr. Hamilton may choose to become a United States citizen later,” said the High Court Judge.
She ruled that she found evidence that Mr. Hamilton lives and works in St. Kitts and occasionally visits his wife and children in Florida.
Mr. Hamilton had told the High Court under cross examination that he was the holder of a United Sates Permanent Resident Card and that his wife and all his children lived in the United States.
He admitted under oath that as a Permanent Resident of the United States he does not pay taxes, has never paid taxes, has no obligation to pay taxes and is under no obligation to obey the laws of the United States.
“I am not obliged to obey the laws of the United States. I am not obliged to adhere to the laws of their constitution. I cannot have divided loyalties,” was Mr. Hamilton’s response to questions from Counsel. Dr. Henry Browne.
He said he was prepared to give up his United States Permanent Resident (Green Card) “any time, because I do not intend to reside, live or migrate to the United States” and admitted: “When I accepted the Permanent Resident Green Card I had no intention of living in the United States as a permanent resident.”
During the trial on August 13th 2010, Mr. Hamilton said when he went for the interview he satisfied all the requirements, but did not have to indicate to the United States Embassy official conducting the interview, that he had no intention of living permanently in the United States.
Under cross examination by Dr. Barnett, Counsel for the Office of the Attorney General, Mr. Hamilton admitted that his signature on the Green Card indicates that he is a resident of the United States since the 9th July 2003.
”On all occasions when I enter the United States since 2003 I entered as a person holding a permanent resident green card,” said the Hon. Eugene Hamilton in response.
