Clear as mud

| 05/05/2009

In what he called "a clarification" that made the situation regarding the late declaration of public contracts held by Mark Scotland and Dwayne Seymour about as clear as mud, the governor has failed to answer the question regarding this constitutional issue surrounding the two candidates and in turn failed the electorate.

The statement issued by Governor Stuart Jack yesterday would not have been quite so ridiculous if the UK’s representative had not cited it as a clarification. Given such statements, none of us can blame Scotland and Seymour for staying in the race. They want to be politicians and as far as they are concerned remaining in the election despite being technically disqualified is in their best interests, because if on Election Day either one pools enough votes to be elected they can use the democratic principle and the demonstration of support from the electorate to fight any challenge.

The problem here lies with the authorities and in particular the governor. After all, the Cayman purse is already some $6 million down and counting because of what Jack has perceived as the pursuit of good governance. It seems that he is perfectly comfortable ruining the careers of high court judges and senior police officers with distinguished records where there is virtually no evidence to suggest wrongdoing, but where there is a glaring breach of a black and white requirement in the Constitution he takes no action to indicate whether the candidates are qualified or not.

There is absolutely no suggestion that either of these two Bodden Town UDP candidates were trying to hide anything or deliberately avoid compliance. However, as many a person clutching a speeding ticket will attest, not meaning to do it has never saved anybody from paying the consequences. As Mark Scotland can probably testify as well, when a footballer scores an own goal no amount of pleading to the referee that it was an oversight will make it go away — because it is the rules.

This situation would be far better served if the two candidates were able to clear this situation before Election Day to ensure fairness with regards to all the candidates in the race as well as for themselves, but above all the Bodden Town electorate, which has a right to know that if they vote for either of these candidates that vote will count.

Whether it is the governor, the attorney general  or a Grand Court Judge, there is a pressing need for a definitive ruling on the two candidate’s qualification before Election Day. At this very moment in time the candidates are both, according to the Constitution — not to CNS, the other independent candidates, the PPM or anyone else, but the Constitution — disqualified. It says so very, very clearly in Section 19 1 (g) and if that law was upheld by the person who is ultimately responsible for upholding it, Scotland and Seymour would have already been declared disqualified giving them a chance togo straight to the courtroom to present their case.

Then, if as the UDP has declared they are eligible to contest the election, they would win and a judge would say so. At that point all the candidates would be able to return to the hustings for the mudslinging, insulting and regular political criticisms in a fair fight to the finish.

Sadly, however that does not look like it is going to happen, so both Scotland and Seymour will stand on Election Day while, to the letter of the law, being disqualified. Should either candidate then gain enough votes, he will be challenged and the legal wrangling will begin, possibly destabilising any potential new government and creating a post-election battle that will not only damage confidence at home but likely damage confidence abroad as well.

Category: Viewpoint

Comments (27)

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  1. Anonymous says:

    I think it is time to put this issue to rest.  It was clearly an oversight on Mr. Scotland’s and Mr. Seymour’s part and will not change the minds of the voting public in the district of Bodden Town.

    Facts remain the people of Bodden Town want to see these candidates gain their rightful place in the LA so they will be voting for # 8 and # 9 on May 20.

    I find it hard to believe that a QC in their right mind would overturn the mandate of the people and if it should happen as raised numerous times before and a bi-election held then the voters of Bodden Town would vote them in AGAIN!!

    Get over it people we have more serious issues to worry about then this.

    For example: Can you tell me why the Department of Tourism is engaging Alicia Keys (although I am a fan) during a Global economic crisis? I’m sure we can all agree that she comes with a high price tag!  So tell me people here we have another classicexample of the mis-management of Government Funds!!!!!!!!!!!!!!!

     

     

    • Anonymous says:

      Unfortunately the issue cannot be put to rest as the two individuals,  that everyone agrees cannot  sit in the LA, have decided to  ignore the provisions of our Constitution. They should do the noble thing and sit this one out and then we could indeed put this one to rest.

      It is alarming to hear that these individuals and some of their supporters seem to deem themselves above the Constitution… Just an oversight…I wonder what else they will attribute to "just an oversight"..

      I was considering voting for Mr.Scotland until I heard him state on the radio that he is not voting for the proposed new constitution and indicated that this issue plays a part in his decision. Wow… He screwed up and  we should all pay the price and miss this golden opportunity to shape our future and the future of our children and grand children.

      Thanks, but no thanks.

       

  2. Anonymous says:

     

    You Guys are all misinformed. The AG nor the Governor can decide this is a matter for the Courts.

    • Anon says:

      The UDP’s current strategy is to pretend that the factual and legal issues are unclear so that it cannot be said that the voters had certain knowledge that their candidates were disqualified which would entitle the courts to declare the election void so that the next candidate is elected. Instead, if elected and challenged, knowing that he is indeed disqualified, they hope he will be eligible to run in a bye-election instead.

      This has now moved from the previous strategy that the issue was entirely clear in their favour, e.g. misleading the public that the AG and the Elections Office have said they are eligible and claiming that they have Cayman and UK legal opinions that say they are eligible. Well hold on – if the issues are unclear then you could not have obtained the legal opinions you say you have. But the truth is the facts are absolutely clear and there is nothing particularly complex about the legal issues.

      1. Mr. Scotland has an interest in Advanced Road Construction and Paving Ltd. (ARCP) with current government contracts for the parking lot for Government Office Accommodation Project, the repair and upgrade to football fields, the reconstruction of Dorcy Drive, and a subcontract to Royal Construction which is working on the George Town Library. He has also has an interest in MCM Consulting Ltd, which has contracts with the NRA for the East West Arterial.

      2. He failed to publish notice of these contracts in the Gazette at least one month before polling day, 20th May, 2009 as required by the Constitution. He has publicly admitted that he failed to do so.

      3. He only published notice of the contracts in Gazette Extraordinary No. 27/2009  on Friday, 24 April – 4 days late.  

      Under Section 19(1)(g) of the Constitution he is therefore disqualified. Any votes cast for him will be deemed void.           

  3. Anonymous says:

    I totally agree with the individual to seek input from Privy Council.. The people of BT deserves to know where they stand with these two candidates and no one here seems to want to  step up to the plate and make a call on it… Can some lawyer direct the BT people on how we can trigger some mechanism to move this forward.. We need to know what to do on May 20th…..

     

     

    • Anon says:

      I disagree. There is no constitutional basis for the Governor to involve the Privy Council particularly as this may prejudice any ruling made by the Grand Court which is vested with authority adjudicate the matter under the Constitution without right of appeal. However, there is no reason that the Attorney General cannot give an opinion on the matter.  He is simply ducking the issue by saying it is too complex or the facts are not clear.   

      • Anonymous says:

        ACT NOW !!!. H.E. the Governor should ask the Attorney General without further delay to seek a ruling/ guidance on this matter from the Grand Court. This process could be completed within 2-3 days on a priority basis. This should be donenow. Gentlemen, please, please save country’s resources by taking this action now. Our country needs a stable and strong government on May 21st to meet enormous challenges we are facing now.  

  4. Anonymous says:

     

    Privy Council should be consulted. The Governor has a supreme responsibility and has obliged to protect and uphold the constitution. And more importantly, the Caymanian pubic is paying him a big salary to do his job properly. If the Governor is not sure what to do in this issue, he should seek a ruling from the Privy Council ASAP. 
     
    MR. JACK, DO NOT WASTE TIME AND ENERGY OF THE BODDEN TOWN PEOPLE.
  5. Anonymous says:

    Privy Council should be consulted. The Governor has a supreme responsibility and has obliged to protect and uphold the constitution. And more importantly, the Caymanian pubic is paying him a big salary to do his job properly. If the Governor is not sure what to do in this issue, he should seek a ruling from the Privy Council ASAP. 

     
    MR. JACK, DO NOT WASTE TIME AND ENERGY OF THE BODDEN TOWN PEOPLE.
  6. Richard Wadd says:

     Here we go again …. and once again, I question exactly WHAT Gov. Jack’s agenda is in Cayman? It seems to me that his directive is to cause as much ‘Harm’ to our reputation as possible, and we are playing right into his hands.

    But there is apparently MORE to this ‘Dis-qualification fiasco’ than meets the eye. It seems that IF they are allowed to contest, and WIN their seats, once challenged, the Courts will then force a Bi-Election. 

    Having a ‘Bi-Election’ will then allow for the Declaration process to begin from scratch, therefore allowing them a fresh opportunity to be ‘Legal’ for the next round…. pretty smart isn’t it.

    The problems I have with this? 1). WE have to pay the Cost !!  2). If they begin thier Political Carrer in such an underhanded manner, where will it end?  3). Is THIS the type of Governance that we can expect from the UDP ….. again? Is that not WHY we ousted them at the last election?

    And ‘Jack’ just keeps on smiling !

     

  7. ladyjules says:

    Thank you once again CNS for not allowing glaring hypocrisy to go unnoticed.  I think some people are missing the point about this situation and that is – the law is the law.  If a candidate or party exceeded the legal campaign budget restrictions, no doubt it would (and should) be called into question.  If a candidate was seen canvassing on election day, shouldn’t they be confronted?

    Deadlines are set to maintain the integrity of operations.  Late submissions whether they are school projects or clients’ proposals are subject to scrutiny and seeing as this situation in in direct breach of the law I would think someone should formally scrutinize it now, lest it become an issue later.

    I’m disappointed that everyone from the elections office to the AG and the Governor, seem to have passed the buck on this one.  It’s a fair argument that the infractions are relatively minor but they should still be duly deliberated and ruled upon so that constituents can be sure of the implications of their precious vote.

    I’m happy to see that the PPM have steered clear of this issue, mainly since it’s not their place both as running candidates and as the incumbent government.  

    (I might add that were the guilty shoes on PPM feet I can’t say this issue would be taken so lightly)

    • Anon says:

      I see the Caymanian Compass in its editorial today continues to confuse the issue of the Register of Interests with the declaration of contracts required under Section 19(1)(g) of the Constitution asking "does it mean the four PPM candidates could all have their elections challenged because they completed the Register of Interests form later?".

      If the Compass has read Sections 19 and 53A of the Constitution and the Register of Interests Law (RIL) they will know that no such question arises. A late filing on the Register does not disqualify a candidate whereas a late publication of interests in government contracts does pursuant to  Section 19(1)(g) of the Constitution.  Section 4 of the RIL provides that enforcement proceedings are not triggered until the MLA/candidate is three months late. In this case the due date was nomination day (25th March) and the register was updated by the PPM candidates on 21st April and so there is no question of sanction. Even where the candidate has triggered this provision there is a committee proceeding. Only where the MLA refuses to observe the Committee ruling can the most extreme sanction be imposed which is suspension from sitting in the House for a period. Clearly, the issue therefore has nothing to do with the candidates eligibility or qualification to be elected. Why then is the Compass attempting to mislead the public on the issue by suggesting that there is an equation between the two matters?  

      CNS: The link to the Compass editorial is here

       

  8. Dennie Warren Jr. says:
    Thank you Anon!
     
    His Excellency the Governor should publish the opinion of the Attorney General on whether Messrs Scotland and Seymour have breached section 19(1)(g) or not, since all Bodden Town voters have a legitimate expectation to be properly informed prior to casing their vote on May 20, 2009.  The Caymanian People deserve nothing less.
     
  9. Anonymous says:

    Yet another reason to vote "NO", on the pathetic Constitutional Reform orchestrated by Ian and the good Pastors, for the benefit of our own "Gay Free" lives. 

  10. Anonymous says:

    Thanks for the cited section.

  11. Anonymous says:

    Where does it say that only people in BT can contest this? Quote law here people!

    • Anon says:

      "Where does it say that onlypeople in BT can contest this? Quote law here people!"

      Section 23 of the Constitution states that any application for the determination of any question whether a person has been validly elected as a member of the Assembly may be made by- 

      (i) a person who voted or had the right to vote at the election to which the application relates.

      "The application" here is an Election Petition. The Grand Court Rules state that an Election Petition must relate to a particular electoral district.  It follows that "the election" in Section 23 means the election in the relevant electoral district (BT in this case). One of possible result of an  the Election Petition is a By-Election which would again relate to the particular electoral district. 

      In any event, the point is academic since there is no doubt that any challenge would come from BT.    

       

  12. Speed Up says:

    To Slow Down there really are not that many legal issues. 

    • The month and Government notice are 100% clear as they are both specifically defined as a matter of law. 
    • The voter/candidate point is probably only hypothetical, as a succesful UDP candidate in BT will be challenged by a BT registered voter (why would anyone give the candidates a possible out?)

    This only leaves the by-election issue.  But that is not an issue as to whether these candidates would withstand a challenge to their eligibility .  They won’t and that is clear.

  13. Anonymous says:

    CNS,

    Although I am a big fan – this time you really have it wrong – and you are better journalists than that.

    It is actually very simple:  but you seem to want this story to run and run, andyou simply refuse to be corrected on the matter.

    Yes, both candidates made a mistake.  However, there is absolutely nothing in law that disqualifies them from running.  That is very clear, and you must correct that.

    What IS the case, is that if elected they can be challenged.  What is not clear – as one previous poster commented is who can challenge and on what grounds.

    The fact of the matter is, both candidates acted in the spirit of the law.  Interests were declared. All information was already in the public domain.  Once their mistake was realised, the information was published in the required manner – just 4 days late.  And weeks before election day.

    This seems very reasonable to me.  If elected, clearly the voters are also happy with this disclosure.

    I would say that any challenge would be very weak, and very unlikely to succeed.

     

     

     

     

     

     

     

    • Anon says:

      "I would say that any challenge would be very weak,and very unlikely to succeed".

      Is that your political opinion, or your professional legal opinion? It is pretty clear that (a) you are not a lawyer; and (b) you are a UDP supporter since you are merely giving us the standard UDP disinformation. Your opinion therefore suffers both from bias and lack of the technical legal skills and experience to offer a valid opinion. 

      "However, there is absolutely nothing in law that disqualifies them from running.  That is very clear, and you must correct that. What IS the case, is that if elected they can be challenged.  What is not clear – as one previous poster commented is who can challenge and on what grounds.The fact of the matter is, both candidates acted in the spirit of the law".

      Clearly if they are found by the Grand Court to have been disqualified under Section 19(1)(g) of the Constitution they will not have been validly elected. Any purported election will be deemed void. The court will have found that they had not been eligible to run. There is no "spirit of the law" compliance with Section 19. Either you have complied with its requirements, or you have not.  

      There is no unclarity about who may challenge the election of a disqualified candidate. In this case any candidate or voter in the BT electoral district may challenge the election of a candidate on the basis that he was disqualified.

      The UDP needs to stop seeking to mislead the public on the issue. It ended badly last week with an embarrassing headline in the Caymanian Compass: UDP Eligibility Claims Rebutted. Stop pretending that the AG and the Election Office told you that Messrs. Scotland and Seymour are eligible to run. It simply makes you seem like a party of dishonest buffoons and that will not win any votes.   
  14. Anonymous says:

    Wendy,

    This is brilliant! You bring the point home as to why no one seems inclined to do anything about this problem until it becomes a BIG expensive unctrollable mess. I dare say that’s exactly what these candidates want – hoping that no one will bother and they will not be challenged as a result.

  15. Solution Driven Caymanian says:

    To be fair to Mr. Scotland and Mr. Seymour a full search and disclosure by the Government acting on behalf of the people in order to ensure the integrity of the Constitution should be performed on each potential candidate prior to this and future elections. If only to prevent counter claims of ineligibility or crying foul. If they contest the results, or come to court they must come with clean hands. The Elections Office must have the power to mandate such a search on a potential candidate to prevent non-disclosure. It is fundamental! It should be done to prevent something like this from ever happening. This excercise needs to be mandatory between the Register of Companies, Immigration, the Central Tenders Committee, the Treasury Department and any other Department who can assist. This portion of the constitution is only effective if we ensure that it is not being undermined. We need to be pro-active and not re-active!!! Thats what got us in this mess in the first place. If nothing else comes out of this let’s at least learn from our mistakes.

    There is much speculation that there are other candidates that have failed to declare business agreements with Government (on time, or at all) but no one seems to know for a fact or care to establish if this is true. Who blew the whistle anyway? Their are silent partners and Directors that exist in many companies on the island that the average JOE knows nothing about. It’s only after you get caught or trip and fall that these things come to light. I for one think that the majority of elligible voters in Bodden Town (and the three islands) know that Mr. Scotland and Mr. Seymour are doing business with the Government, one month notice or not this is public knowledge. Isn’t the publishing in the Gazette for public knowledge? The controversy that has surrounded this issue would mandate a call for a full search on ALL CANDIDATES. If the date of the election has to be changed to facilitate such a search then so be it. Better a change of date than a bi-election, or court of appeal case.

    • Just the Facts says:

      Solution Driven, the point is whether you think there is public knowledge of such contracts. There is a prescribed constitutional required to publish in the Gazette and it wasn’t followed. 

      As for putting the onus on the Elections Officer to do a search and determine whether all candidates have contracts with government or other interests they should disclose I believe this as unreasonable given the number of candidates. What if the Elections Office miss something – is the candidate disqualified through no fault of his own? That would be unprecedented anywhere that I am aware of.     

  16. Slow down says:

    While I understand and even sympathize that this issue has somewhat become CNS’s raison d’être, calling on Governor Jack to suspend the rule of law, abandon the separation of powers and assume judicial functions simply so this issue can be nicely squared away into a nice little media  box is a rather extreme suggestion.

    Even if Jack were to make some sort of pronouncement on this issue, it would invariably be open to the courts to declare that he had acted ultra vires and quash any said action. H.E clearly does not have authority under the constitution or any other instrument to take the action that you are calling for.
     
    The mechanism for resolving this situation is clearly spelt out in 23 of the Constitution. It leaves it open to the Grand Court to rule on the eligibility or otherwise (tobecome a member of the LA – not to stand in the election – an important distinction you are ignoring) of any candidates AFTER the election IF challenged by either the AG; a registered voter or a candidate that thinks he could have won the said seat.
     
    There are a lot of legal issues to be decided, for instance:
    • What does at least one month mean? Is that a calendar month (presumably), 30 business days or something else?  
    • What is a Government notice?  A notice published in the Government Gazette, a notice (such as a press release) published by the official Government Information Services or something else? How does one cause something to be published and at what point is one deemed to have done so?
    • Which candidates can challenge over eligibility? Any in the Bodden Town race or only the one that ran behind the candidate who is being challenged? Which voters can challenge? Any registered voter or only ones in BT?
    • If there is a by-election can the at-question candidate run again in it or are they barred from running for office for five years?
    If the community isn’t happy with the way the constitution deals with the issue, they should add it to the list of needed constitutional reforms to be discussed with the UK if this draft fails the referendum (bearing in mind no-one identified this issue as a problem during the last round of talks).
     
    But it is incorrect and downright misleading for CNS to suggest this situation is as clear-cut as has been claimed above.
     
    Unfortunately, most BT voters will be scared off from voting for these two and the case will never go to court, leaving these issues unresolved until the next time.

     

     

     

    • Anon says:

      "The mechanism for resolving this situation is clearly spelt out in 23 of the Constitution. It leaves it open to the Grand Court to rule on the eligibility or otherwise (to become a member of the LA – not to stand in the election – an important distinction you are ignoring) of any candidates AFTER the election IF challenged by either theAG; a registered voter or a candidate that thinks he could have won the said seat".
       
      Slowdown, with respect, that is a distinction that is unknown to the Constitution. An Election Petition may be brought under Section 23 expressly for the purpose of determining whether a candidate was validly elected, i.e. whether he had been eligible to stand in the election.  If he is found to have been disqualified the votes cast for him are deemed void. 
       
      The issues you raise are not nearly so complex as you suggest. For example, it is perfectly clear that a press release is not a Government Notice. Government Notices are published in the Gazette. Each Gazette has a deadline for submission of notices for publication on a certain date. You cause it to be published by submitting it on or before that deadline so that the Gazetted notice is published in the required timeframe. It is also perfectly clear that a candidate who has been found to be disqualified can run in the by-election (provided he is then qualified) as we a have a precedent in the case of Mr. James Manoah Bodden who first gained his seat in a by-election after he was found to have been disqualified in the immediately preceding general election.             

       

       

    • Anon says:
      "There are a lot of legal issues to be decided, for instance: What does at least one month mean? Is that a calendar month (presumably), 30 business days or something else?"
       
      First, this is not a real issue since under no definition of "month" would the candidates in question have complied with the requirements of Section 19(1)(g) of the Constitution. Apparently the only point in suggesting that it could be 30 business days is to suggest that candidates Kirkconnell and Conolly may also be in default. 
       
      Second, the Constitution, as a UK Order in Council, is required to be interpreted according to the UK Interpretaton Act, 1978 which is clear that a reference to a month in legislation is to be understood as a calendar month.
       
      Third, it is well established that calculating the period of a month’s notice one must exclude the day on which the event occurs, in this polling day, 20th May, 2009.
       
      Fourth, it has consistently been held by British Courts and most recently in the House of Lords decision in Dodds v. Walker [1981] 1 All ER 609, per Lord Diplock  that "when the relevant period is a month…after the giving of a notice the general rule is that the period ends on the corresponding date in the appropriate subsequent month, i.e. the day of the month that bears the same number as the day of the earlier month on which notice was given".
       
      In this case this means, that the notice must have been Gazetted by no later than 19th April, 2009.  
       
      In my view, there are no thorny outstanding legal issues or cloudy factual matters that would prevent the Attorney General from giving a clear opinion on this.     
       
       
  17. Anon says:

    I agree CNS. But to be fair to the poor Governor it is really the AG’s fault. I suspect he does not want to come out and saythey are disqualified, although it is perfectly obvious, since he was appointed under the UDP Govt. , will serve whichever government is elected and does not want to get in the political cross-fire. 

    Meanwhile Sotland and Seymour are claiming to have legal opinions (from both UK and Cayman lawyers) stating they are qualified. Since no competent, objective lawyer would give such an opinion at this stage, one suspects that the Cayman opinion is not a legal opinion at all but some hasty, ill-considered, overly-sanguine "in-house" advice, and the UK opinion simply does not exist.