A shocking & unnecessary constitutional mess
Now that the Attorney General has excused himself from upholding the Constitution, some questions demand answers:
1. Are Messrs. Scotland and Seymour now MLAs?
No. If they failed to comply with section 19(1)(g) of the Constitution, which they have publicly acknowledged, section 19(1) states in the clearest terms that they were not "qualified to be elected as a member of the Assembly".
If anyone wonders whether section 19(1) means what it says, take a look at section 17 of the Constitution which establishes the Legislative Assembly and states that it is to include 15 elected members "who shall be persons qualified for election in accordance with the provisions of this Constitution and elected in the manner provided by [the Elections Law]" (my underlining).
2. But is this not something that the Court must decide?
No. Not unless Mr Scotland or Mr Seymour now claims that he did comply with section 19(1)(g). Then there would be a question for the Court to decide. But, if they acknowledge that they did not comply with section 19(1)(g), there is no question to be put to the Court.
I have heard some incorrect explanations of these Constitutional provisions, suggesting that they operate by giving the Attorney General and certain others a right of challenge, i.e. a right to ask the Court to disqualify the non-compliant person. On this view, a non-compliant person can become an MLA and take his seat in the LA – unless and until a challenge is made and the Court disqualifies him. That is incorrect. Judging by his recent statement saying why he intends to take no action, the Attorney General may also be making this mistake.
The Constitution gives voters the right to elect MLAs, but it limits the right by saying that voters can only elect a person who is qualified. In order to qualify, the person must comply with sections 18 and 19. If a candidate does comply, he can be elected by the voters. If he does not comply, he cannot be elected by the voters. The Court’s function is to resolve any question or dispute about whether the person does comply.
3. Does the Governor, the Attorney General, or any public officer, or the Court, have power to say that the failure of Messrs. Scotland and Seymour to comply with section 19(1)(g) is not sufficiently serious to warrant disqualification?
No. The Constitution gives no such authority. And it is clear that the framers of our Constitution did regard the existence of interests in government contracts as a serious matter – and rightly so, as they create conflicting interests. The Constitution is equally concerned about duly elected MLAs who subsequently acquire interests in government contracts. Section 20(3) provides that "the seat of an elected member of the Assembly shall become vacant” if he acquires an interest in a contract with the Government. Under that section (unlike section 19(1)) the seat of the MLA can be saved but only if (a) the member has brought the circumstances to the Governor’s attention prior to or as soon as practicable after he acquires the interest and (b) the Governor thinks it just in the circumstances to save his seat.
4. Did the swearing-in of Messrs. Scotland and Seymour by the Governor make them MLAs?
No. The Governor has no authority to override the Constitutional rules, and he did not pretend to do so. Of course he should not have sworn them, knowing that they had publicly admitted to being disqualified. Apart from the general consideration that the Governor should in everything he does uphold the Constitution, he was condoning an offence (see below).
5. Are Messrs. Scotland and Seymour committing an offence by pretending to be MLAs?
Yes. They are committing an offence under section 24 of the Constitution which provides: "Any person who sits or votes in the Assembly knowing or having reasonable grounds for knowing that he is not entitledto do so, shall be liable to a penalty not exceeding [$40] for each day upon which he so sits or votes”.
This is the offence to which I referred above. The swearing-in ceremony took place in a session of the Legislative Assembly, so Messrs. Scotland and Seymour were at that very moment committing the offence, and the Governor was condoning it. The Constitution makes the Attorney General responsible for collecting the penalty under section 24.
6. Is Mr. Scotland validly appointed as a Minister?
No. A person who is not an MLA cannot be appointed as a Minister. Under section 5 of the Constitution, only "elected members of the Assembly" are eligible to be Ministers.
7. Did the Governor validly assign to Mr. Scotland responsibility for the Ministry of Health, Environment, and Youth, Sports and Culture?
No. Section 9 of the Constitution only permits the Governor to assign responsibility to people who are members of Cabinet. Failing a valid assignment of responsibility, the Governor himself has the responsibility. Any purported act by Mr. Scotland as a minister has no Constitutional authority.
8. Does the presence of Mr. Scotland invalidate proceedings of Cabinet?
This is not clear. Section 13(3) provides that: "… The validity of the transaction of business in the Cabinet will not be affected by reason only of the fact that some person who was not entitled to do so took part therein." This clearly validates business done in good faith, without knowledge of the fact that one or more of those who took part were not entitled to do so. It is not clear that it applies in a case where everyone present, including the Governor, is aware that one of the members is not entitled, and that the Cabinet has not been constituted as required by section 5 of the Constitution.
As noted under the next question, there are also doubts about whether any of the ministers have been validly appointed.
9. Is there a similar uncertainty about the validity of proceedings in the Legislative Assembly?
Yes. Again, there is a validating provision (section 33(3)), but again it is not clear that it applies in a case where the Assembly is aware that persons taking part asMLAs are not entitled to do so. It would certainly be strange if this section means that a gathering of acknowledged pretenders, all committing the offence under section 24, could validly exercise all the powers of the Assembly.
It follows that there is doubt about the election of all the ministers purportedly elected to Cabinet by the MLAs. In other words we may not have a validly elected Cabinet. And that casts doubt on the actions and decisions of the Governor on which he is required by the Constitution to consult Cabinet.
10. Given that Messrs. Scotland and Seymour are not MLAs, what does the Constitution say about the representation of the Bodden Town district?
The question is whether:
(a) the three qualified candidates who received most votes in the recent election are the MLAs; or
(b) a by-election must be held.
The Constitution and the Elections Law do not say which applies in these circumstances. If this question went to the Court, it would need to weigh up not only the language of the Constitution and the Law but also the underlying principles of democracy and fairness. One would expect a court to order a by-election in a case in which the disqualification was not public knowledge before the election, and I understand that there was a case of that sort here some years ago – in which, incidentally, I gather that the Governor did uphold the Constitution by refusing to swear in the candidate concerned, and calling on the Attorney General to make an application to the court.
But the present case is different because the failure of Messrs. Scotland and Seymour to disclose their government contracts as required by the Constitution was well known to the public before the election. This brings in a doctrine, well established in courts of England and Commonwealth countries, which would certainly be followed by our Court, known as "votes thrown away". In a recent case decided by the Supreme Court of Jamaica the doctrine was described by the Court in these words: "If the electors have due notice that a candidate is disqualified to be elected and with that knowledge they vote for the disqualified candidate then that would be tantamount to throwing away their votes . . . . . .. . . . ." So the outcome would depend on the evidence of what the public knew.
11. What should have been done by the Attorney General before the General Election?
The idea that the Attorney General and the Supervisor of Elections may properly allow an election to go forward with Constitutionally disqualified names on the ballot papers is astonishing, and it makes no sense. Messrs. Scotland and Seymour were acknowledging that they had not complied with section 19(1)(g) of the Constitution, so the Attorney General should have advised them and the Supervisor of Elections that their names must be removed from the ballot papers.
If Messrs. Scotland and Seymour had then changed their tune and claimed that they had complied, the Attorney General should have referred that question to the Grand Court for a decision. If the Court found that they had been disqualified, the Attorney General should then have advised the Supervisor of Elections to remove their names from the ballot papers. In my opinion it was the Attorney General’s duty to act in this way. If he had done so, the present mess would have been avoided.
12. Why did the Attorney General not do so?
The Attorney General’s recent statement indicates several reasons. If I have understood them correctly, each is bad. His reasons appear to be (a) others could take the necessary action, (b) lack of responsibility on his own part, (c) public interest, (d) political neutrality.
His comment that others can apply to the Court, so there was no need for him to do it, misses the point in several ways. First, there was no issue for the Court; these candidates were acknowledging that they had not complied withthe Constitution. It was a matter of advising the Supervisor of Elections to remove their names from the ballot papers. No one other the Attorney General was in a position to do that.
Second, to claim that there was no greater "onus" on him than anyone else to use his access to the Court to enforce the Constitution (if the candidates turned round and disputed their disqualification) is to deny that when the Constitution gives the Attorney General powers, it is also giving him duties. Could he possibly think that his various Constitutional powers are given to him to use or ignore as he pleases, free of any responsibility? Does he really deny that it is his responsibility to enforce the Constitutional rules? Then he gives "public interest" and political neutrality as reasons for his decision – which seems to acknowledge that he does have responsibility of some sort.
The idea that his inactivity was justified by public interest raises several questions. When he decided to do nothing before the election, was that because he thought it was in the public interest that voters cast their votes for disqualified candidates? Was it because he thought it would be in the public interest to put the country into the present Constitutional mess? in what way could he possibly have thought that giving effect to the Constitutional disqualification of candidates would harm the public interest? And what made him think that the unequivocal Constitutional rules are subject to his own notions of what would best serve the public interest?
As for his statement that he has a duty to "maintain absolute neutrality in political matters" and that this was another reason for him to do nothing, it would be funny if it were not so serious. That is like the referee of a football match saying that he must be neutral, so he is not going to blow the whistle when a player commits a foul. Neutral – yes! Failing to enforce the rules (the Constitution) – absolutely no!
On his strange theory of neutrality, the Attorney General would have to refuse to prosecute the election offences allegedly committed by or for the benefit of the UDP, even if the police investigation finds that there is ample evidence. We need to have the Attorney General’s assurance that in all these matters he will be neutral in the true sense, i.e. that he will do his duty under the Constitution unswayed by what politicians may think or how they may be affected.
13. How has the public interest been affected thus far?
Messrs. Scotland and Seymour, and those who encouraged them to keep running in the election, and the Attorney General and the Governor, have damaged the public interest by putting the rule of law in this country into question. Perhaps they do not understand the importance of the rule of law. But it is the line between order and chaos. Nothing could be more damaging to public order and confidence than a highly publicised demonstration that our most fundamental law may be disregarded by the highest in the land, even by the public servant whose primary responsibility it is to ensure the rule of law.
The demonstration is doubly damaging to the public interest because it relates to the election of MLAs. That is the heart of the democratic process. The whole idea of Constitutional democracy is undermined. As is the idea that Constitutional democracy is guaranteed in this country by the United Kingdom and its representatives.
Certainly there is no point in our bleating about lawlessness and criminality in our community, or about the need for more good people to get involved in politics, when this sort of thing is going on.
The public interest is also damaged when the Constitutionality of our Government is in question, when there are serious questions about the validity of Government acts. The public interest is also damaged because these extraordinary events have already caused outrage in our community and aggravated divisions and animosity on all sides. Looking forward, I see no reason to think that will improve any time soon – unless the rule of law can be restored in a way that the country can see is fair and honourable. The public interest is also damaged because the rule of law is an important element in attracting business to this country. Coming on top of all the things that have been happening to our police and judiciary in recent times, this Constitutional mess, if not fixed soon, must make observers wonder what on earth goes on here.
14. How can the rule of law be restored in a way that the country will see is fair and honourable?
I suggest: The Attorney General should issue a new public statement clarifying his recent statement, and acknowledging that he should not have allowed the names of disqualified persons to go forward in the election. To reassure the public he should make clear that he will deal properly and promptly with the allegations of election offences against the UDP.
If Messrs. Scotland and Seymour accept that they were disqualified, they should announce that and acknowledge that they are not MLAs. If they no longer accept that they were disqualified, they should explain why. The Attorney General should then consider whether to make an application to the Court.
If Messrs. Scotland and Seymour are disqualified, and if the two PPM candidates who came second and third among the qualified candidates for Bodden Town are willing to notify the Governor that they will not claim that they were elected, that would clear the way for a by-election. I am not suggesting that they have any legal duty to do so, but I am sure they would weigh up the pros and cons for the country. The Governor could then call the by-election, and should do so as soon as possible. The country needs to draw a line under this dismal story and move on.
On the upside this should go a long way towards repairing the damage to the public interest. If the candidates involved take these steps voluntarily, without putting the country through litigation and all the expense, publicity and aggravation that would cause, they should be given credit for putting the country’s needs ahead of their own ambition, and I hope that this will alleviate some of the inter-party rancour that is already evident and growing.
On the downside, the country (and the candidates and their supporters) will be put to the expense and aggravation of a by-election, but I suggest that this price is worth paying. This mess could have been avoided with little or no cost to the country if Messrs. Scotland and Seymour, or the Attorney General, had honoured the Constitution in the first place. But now there is no cheap way out of it.
Category: Viewpoint
Hey, what happened to the challenge? What kind of spin will be placed on this now?Lots of saber rattling this morning…..hmmmmmm.
"Hey, what happened to the challenge? What kind of spin will be placed on this now?Lots of saber rattling this morning…..hmmmmmm".
The period expires tomorrow.
Mr Duckworth, you are an attorney. The only reason this chalange will cost as much as it will, is because of attorney fees. If the legal faternity feels as strongly as you do on this why are you not able to convince your collegues that it is the right thing to do and collectively offer some of the needed services for free or at cost?
At the very least the legal fertenity should offer to file the challange in a timely manner so that the process can move ahead. Like you I too think it is important that our constitution is upheld, I however do not have your ability to move a challange through the courts but I would be willing to contribute to the cost of doing so if a collective effort was made and the lawyers involved did not see this as an oppurtunity to make the usual huge profits but were willing to do this work at costs.
I also know that if there is no challange from a qualified elector then there is no breach of the constitution so I hope that if the proposed challange is allowed to expire by the Bodden Town voters then Mark and Dwane are constitunally elected to their posts and I for one will have no tolerance for people who continue to gripe after the deadline is passed.
Put up or shut up.
Mr Duckworth, or any other lawyer out there, can you elaborate about the difference between a contract with Government and a contract with a statutary authority?
The constitution makes no refrence to statutory authorities, wether owned by Government or not.
If the contracts in question were with the NRA say, will this be deemed as a contract with Government per say? or will they decide that it is a contract with a statutory authority?
I am not a lawyer, just someone looking for some free legal clarifacation.
"Mr Duckworth, or any other lawyer out there, can you elaborate about the difference between a contract with Government and a contract with a statutary authority?"
There is no difference in my opinion. A statutory authority is established by government and funded by govt to perform public functions on behalf of govt. That is why the accounts of not only govt. departments but also statutory authorities and govt. companies are all audited by the auditor general and reviewed by the Public Accounts Committee of the LA. The 1972 Constitution was not seeking to make any distinction between government departments on the one hand and statutory authorities and govt. companies on the other particularly since at the time it came into force there were no statutory authorities.
In Mr. Scotland’s case this is all academic in any event since his company also holds contracts directly with govt. departments as per his Gazette notice. http://www.radiocayman.gov.ky/pls/portal30/docs/FOLDER/SITE83/GAZETTES/GE2009/EX272009_0.PDF
If these individuals are allowed to remain as MLA’s without challenge, must we not then open the doors of the prison and free all prisoners because the rule of law is no longer important. Furthermore if we cannot depend on the AG to make the right decision on a matter where the rules governing this procedure are spelled out in black and white, how can we then trust him to make a proper decision on matters that are in the grey areas of the law or the constitution.
I say we challenge them and pay for a by-election, at least we could see where that money went as opposed to many millions spent friviously by all governments over the years.
In here reaks of sore PPM candidates that didnt get elected and PPM supporters who cant get over it. The posts are so one-sided and defensive on why PPM or their members cannot challenge this. Full of excuses….
Isn’t that what the opposition suppose to do……OPPOSE?!
Well done Mr. Duckworth. There is still hope and perhaps we won’t have to put up with Mac’s crap for 4 yrs as some have feared. You see people didn’t want a UDP govt and they ceratinly didn’t want Mac back……they wanted a coalition govt and so they split their votes and the split went in favour of the UDP and so most of the UDP candidates won by very slim margins.They certainly don’t have the mandate that the people gave the PPM in 2005 as all PPM candidates, except Fonso, won with more than 50% of the votes.
So here’s my point. The people understand now the importance of voting straight and with a By Election looming in BT for 2 of the 3 seats the results will be very different this time. Chuckie and Ossie will be elected and an interesting scenario will develop. The PPM will have 7 seats and the UDP will have 7 seats. That leaves Ezzard as King because neither side can form a government w/o Ezzard. We all know Ezzard so he will tell them whichever side is prepared to accept me as Premier I’m all game and lets form the government and get on with business (Mac would probably have a heart attack at the prospect that he won’t be Cayman’s first Premier after all). The only other possibility is that Rolston (who is only with Mac for convenience – a marriage of convenience if you will) will defect and go with the PPM in exchange for the PPM offering him the Minister of Finance post under the new constitution. Interesting isnt it ??? Damn you just gotta love Cayman politics !!!
This entire thing is really getting on my last nerves!!!! This is one of those rare times that I am a little embarrassed to be a Caymanian. I rememeber the last time how I felt when Mckeeva ousted Kurt, man I was fuming I was willing to march you name it. Kurt had us riled up and I took the day off from work and headed down to the LA only to find out that Kurt had some blarney story on why nothing could be done blah blah blah………I am getting that sinking pit in my stomach again and all they are going to do is cry foul and play the victim. They are remedies available but we must first CHALLENGE. I can guarantee you if a proper challenge is brought to the AG he will have NO choice but to get the process rolling. If we are so incensed by this injustice and care about doing what is right a challenge would have been done ages ago.
Playing off Twyla’s earlier comments its like a baseball game:
Umpires – AG & Gov
Pitcher(s) – Ossie, Chuckie { BT candidates, BT electorate(Duckworth inclusive in this lot) & AG}
Audience – The people of the Cayman Islands
Hitters – Mark and Dwyane
The game will not be started without the first PITCH!!!!
PITCH THE BALL ALREADY let’s get this game rolling!!!!
We are always sitting around waiting for someone else to do what is right but we need to grow some b@!!s and do what is right and of the utmost importance. LEAD BY EXAMPLE!!!!
Dear Pointless, your analogy is all mixed up. (1) The game was already in progress in that the general elections were held and Mark and Dwayne were elected but the validity of their election is question because of they failed to meet the Constitutional requirements. (2) the Gov. and AG were in no way dependent upon the pitchers to call foul. It is their responsibility to uphold the Constitution regardless. (3) The Court is really the ultimate umpire.
Thank God for people of mettle like Gordon and Sandra – a challenge will now be made.
To Kai’s posting at 23:04…….you are a donkey….no matter how many PPM members are registered voters/candidates in BT the PPM CANNOT challenge this mess! Oh, forgot, typical UDP supporter….don’t know the difference between an individual and an organized entity!
"you are a donkey….no matter how many PPM members are registered voters/candidates in BT the PPM CANNOT challenge this mess!"
Heeeeyawwww!!!! A donkey always knows another donkey!!! You clearly do not get it! When I say the PPM I am speaking of its member, candidates, hell even supporters if they are eligible to challenge this! Stop trying to weave around it like you thick! But wait……you are a PPM supporter so not only dont you have any knackies but you got no brains either!!
“no matter how many PPM members are registered voters/candidates
in BT the PPM CANNOT challenge this mess!”
Please enlighten me as to why PPM members that are registered voters/candidates
in BT (ie Ossie, Chuckie, Anthony Eden or Anthony Duckworth) cannot challenge this.
Marching is a great idea but only if the march begins after one or more electors has filed the correct court papers, and people have filed formal complaints regarding what Mr Duckworth suggests is an ongoing offence with the police, the Governor’s Office, the Attorney General’s office, the Solicitor General’s office, the Speaker of the Legislative Assembly and every other person who might be able to do something. Marching without taking care of the formalities is just exercise.
"Marching is a great idea but only if the march begins after one or more electors has filed the correct court papers, and people have filed formal complaints regarding what Mr Duckworth suggests is an ongoing offence with the police, the Governor’s Office, the Attorney General’s office, the Solicitor General’s office, the Speaker of the Legislative Assembly and every other person who might be able to do something. Marching without taking care of the formalities is just exercise."
Mr. Duckworth as you clearly have the knowledge and expertise, I would like to nominate you to assist us, the people, with taking care of the formalities. If you truly believe everything you have said then you should have no problem in helping the people of the Cayman Islands. It is my understanding that you are an electorate in BT and a qualified lawyer, so what better person to represent the people. If your not an electorate in BT, at least you can represent Ossie, Clifford or Anthony in this challenge. Please do consider.
I tell you what I am interested in hearing and that is Mr. McField, our renowned Constitutional expert chime in on this to validate this analogy of Mr. Duckworth.
I believe someone of his knowledge and neutrality would be good for this debate to take on true form.
Come on Mr. McField can you chime in on this and tell us whether Mr. Duckworth is speaking the truth or only half truths.
Constitution Law
Submitted by Anonymous (not verified) on Mon, 06/08/2009 – 14:37
"The fact of the matter is that by filing a few days late, the ensuing publicity, press coverage and public commentary absoluely ensured that voters took great note of theses two candidates govt contracts, which means the intent of the Constitution provision haswithout question, been complied with to a greater extent and certainly more so with these two canddidates than all the other candidates combined.
If no one had said anything about this and kept quiet until after the election, it would have been a whole different matter, and a challenge could then have been justified."
WRONG WRONG WRONG!!
Once a law is broken you can not unbreak it by knowledge. This is the case I stated below regarding UK law where people voted for a candidate who is disqualified. The votes become thrown away.
The fact of the matter is you are required to fulfill certain requirements prior to a certain date and once not done you are disqualified point blank. You don’t get a bye because you are UDP atleast we would hope not.
Today it was just a mistake but tomorrow it could be something much more heinous behind it.
Now that we have all the facts, what is the next step? Seriously if ever there was a time for a protest this is it. Caymanians should march to the Governor’s office and the Attorney Genral and demand that they both step down, They have both shown themselves to be useless.
People, people rise up and show for once that there is some substance in us. This is now way beyond the issue of Mark and Dwayne and their ‘oversight’. This is now about the Governor and the Attorney General and their dereliction of duty.
Come on now let’s act on this Mr. Duckworth, please.
“Caymanians should march to the Governor’s office and the Attorney
General and demand that they both step down”
I agree! Mr. Duckworth we would like you to lead us! You and the PPM need to call
a public meeting and get all who protest this together so that we can march
in great numbers and protest this peacefully but seriously!
I’m down with a march if there is one. But today being the 9th we got to do it quickly.
The fact of the matter is that by filing a few days late, the ensuing publicity, press coverage and public commentary absoluely ensured that voters took great note of theses two candidates govt contracts, which means the intent of the Constitution provision haswithout question, been complied with to a greater extent and certainly more so with these two canddidates than all the other candidates combined.
If no one had said anything about this and kept quiet until after the election, it would have been a whole different matter, and a challenge could then have been justified.
"The fact of the matter is that by filing a few days late".
This is not some mere procedural matter. The Constitution deems it so important that it is a matter of disqualification. There is no doctrine of "substantial compliance" so grasping at the "intent of the Constitution" simply will not fly. These are serious issues as much for the precedent it sets as for the matter itself. Except from a partisan UDP perspective there is no question that a challenge is justified. The fact that the public were aware of the disqualification only means that those who voted for the candidates voluntarily threw their votes away and that the result should not be a by-election at all but that the next candidates in line win.
YOU GOT THE BALL IN HAND THEN PITCH
What I have to say is this, If you got the ball in hand then I say "PITCH" What are you waiting for. To be pushed of the cliff.? Good Grief.
In response to ‘Blah Blah Blah’…….you sound like a typical UDP fan – opening your mouth without knowing the facts! For your information, the PPM cannot challenge this….it must be either a candidate or registered voter in the district of BT……gimme a break!
“For your information, the PPM cannot challenge this….it must be either a
candidate or registered voter in the district of BT……gimme a break!”
And you sound like a typical PPM-fan, need everything spelled out for you. How many
PPM members are candidates or registered voters in the district of BT?? Hopefully
you can count! Then you will understand how the PPM can challenge this!
Well said Cayman Gladiator.!!!
This was such a wonderful well written thought out piece by Mr Duckworth. I checked the register of electors and was surprised to see that Mr Duckworth was a member of the Bodden Town constituent which means he can directly challenge their election himself per Section 23 :
a person who voted or had the right to vote at the election to which the application relates;
If his intentions are truly honorable instead of this beautiful piece of prose a challenge would have been forthcoming and would have illustrated to me a genuine interest in upholding justice and doing what is right in these Islands.
"….have damaged the public interest by putting the rule of law in thiscountry into question. Perhaps they do not understand the importance of the rule of law. But it is the line between order and chaos. Nothing could be more damaging to public order and confidence than a highly publicised demonstration that our most fundamental law may be disregarded by the highest in the land,….."
I suggest: Mr Duckworth actually use his expertise and the remedy available to him as per the Constituiton(our most fundamental law) and challenge the validity of the election of both Messrs. Scotland and Seymour prior to the expiration of the 21 day deadline which I presume to be on Wednesday. Anything less would prove to me that his words above was just that-words- and most self serving and disingenuous – please restore public order and confidence and do what is within YOUR power to stand up for what you profess to believe in!
Well actually "Backbone anyone" if you read his words as intently as you said you did you would have noticed that he said it should not even have to be challenged. This is due to the fact that the crime was admitted.
What I suggest you read is this little exerp again…
"The Constitution gives voters the right to elect MLAs, but it limits the right by saying that voters can only elect a person who is qualified. In order to qualify, the person must comply with sections 18 and 19. If a candidate does comply, he can be elected by the voters. If he does not comply, he cannot be elected by the voters. …..The Court’s function is to resolve any question or dispute about whether the person does comply."
Now add to this the fact that they have admitted that they in fact did not comply and you get….
Someone who can not in fact be sworn in to office!!
Now what happens to the votes and the voters…
"This brings in a doctrine, well established in courts of England and Commonwealth countries, which would certainly be followedby our Court, known as "votes thrown away". In a recent case decided by the Supreme Court of Jamaica the doctrine was described by the Court in these words: "If the electors have due notice that a candidate is disqualified to be elected and with that knowledge they vote for the disqualified candidate then that would be tantamount to throwing away their votes . . . . . .. . . . ." So the outcome would depend on the evidence of what the public knew."
And since everyone and their grandmother by voting day knew full well that Mr Scottland and Mr. Seymour did in fact not qualify under the constitution by way of section 19 then they have in fact "thrown away their votes".
Now what does this mean? Well we are not sure….What we are sure about is that:
What you are asking for is a challenge and I see how you feel because if I had the money I would do it out of sheer love of my country and it saddens me that those of us in this country who "claim" to love their country and who could afford this do nothing. This saddens and baffles me. But the fact of the matter it truly is not even for a court to handle because the case is open and shut so as to speak. They should just have to vacate their seats and either a bi-election done (without them) or the next two in line take their place.
What has happened is a meltdown within the processes and I sit back and laugh when I read Mr. Gomez speak about how well this election went.
Sounds so wonderful and complete it brings tears to myeyes. Yes it was smooth but so sometimes is utter destruction.
This is a fiasco to say the least. A potpourri of utter rubbish. An Attorney General who bleeds utter foolishness onto paper about why he is not challenging a ruling. A Governor who actually swears in people HE KNOWS are disqualified. Ahh the drame of it all. I feel like writing a soap opera about this or should I turn it into a thriller called "Tax Haven Mayhem". You know I throw in the Tax Haven because the name sells now. I would become rich.
But in retrospect because it seems like we are all deers caught in headlights right now and it saddens me to see us all so stupified by the drama of this all that no one either wants to react or is too "contained" to do it then a candidate or voter should file, not because he actually has to but because people like the AG seems to be so silly he can’t figure out where his duties lie and the Governor is still spinning from all the dollars he has made people take out of our country that he won’t do anything that someone actually HAS to file to get the ball rolling.
OOh yeah and what aout PPM. Well they are caught in the almighty complex. Do I piss off the BT voters and not get back in in 2013 or do I actually do a service to my country. Huuummm always about votes hugh. Sad part is that is our fault. Just take a look at Big Mac getting up in Church to say he is changing PIrates Week name. Aaaah to a well pleased audience. Can anyone say "Vote Getting". Sad part is he iswell to put it polically correct "no angel" himself with so many "interesting incidents" over his political career like the bank incident and the status grants yet today he is a born again and in church proclaiming what he is going to do. Sad part is the churches think he cares for more than just their votes.
Big Mac what a messed up web you weave us into. If you had any inkling ofrespect and dignity or God forbid I say this (forgive me Lord) LOVE FOR YOUR COUNTRY. Then you would ask that they step down and the law be followed. But of course you won’t because you really do not care about us only the dollars that flow from the money brokers who actually are running this beautiful place I call my home.
I do agree with one item I am reading in post there. We do need a 3rd party. We need a new team who kind of blends some of what each party has. The proactiveness of the Mac team with the dignity and law abiding way of the Kurt team. Throw in some experience and some young new blood and I think we have some room for a new power team.
On that note I would like to place a call out to Bernie Bush, Dwayne Sterling Ebanks & Tara Bush to form a new WB alliance for the betterment of our Islands, a new team. A Team Cayman so to speak who stand by the law and "TRULY" for the people of the Cayman Islands.
I also want to call out the Independents in GT and BT to group together. Theresa you did a really good job this elections and you are smart and full of life. Justin, you are unknown but part of the BT spirit for good government. Group together and find the common good in one another to set us on a new course forward.
I finally call out Mr Truman Bodden and Mr. Linford Pierson two stallworths in our country to be the mentors and special advisors to this new team. For this team will not be as experienced as others so they will need advising.
My friends and fellow Caymanians I think the old guard needs to change. What we have before us is one government who doesn’t react as fast as they should and who makes some unwise decisions (PPM) and another who will do anything to get votes including and not limited to breaking the law.
We need better than this. Not for me and for you but for our children and our children children. We need a Cayman to give to them. At the pace we are going we won’t own it anymore or it will be a trash mound in the middle of the Caribbean.
Let’s do this guys. A new team. For Cayman.
Up until the day of the swearing in ceremony Kurt Tibbetts and the PPM were the government elected (and paid) by the Caymanian people to govern and uphold the constitution of the Cayman Islands.
How fitting it is that the PPM’s characteristic lack of leadership culminated in their failure to challenge Dwayne and Mark’s candidacy.
Ossie publicly supported a challenge from the time the election results were announced but he needed the support of his party.
His party has failed him.
Isn’t it ironic that the PPM supported Mr. Charles Clifford when he was found guilty of wrongdoing yet turned their back on him when his seat in Bodden Town was in jeopardy due to a clear breach of the Constitution?
We must ask ourselves what is worse; to have a crime committed, or for the crime to be committed and for the leaders and authorities to stand idly by and turn a blind eye?
I believe the latter is most damaging to democracy and the rule of law in Cayman.
Such inaction has cost the PPM many votes in 2013 and heralds the dawn of the need for a third political party; one based on strong ethical leadership while upholding the rule of law not only when it is politically expedient but all the time.
These qualities are not evident in the PPM or UDP.
-Cayman Gladiator-
Excellent commentary, Mr. Duckworth!
I have been bewildered since well before election day as to why these two men were allowed to be on the ballot. If they were ineligible then how could they run?
This mess was inevitable. Why didn’t the AG and Elections Office recognize it immediately and act?
In track and field if athletes false start twice they are disqualified and the race is run without them. They don’t let the disqualified athletes run and then try to work out the official results on the way to the medals podium.
This was handled in such an idiotic way from the start. Why? Is it stupidity? Corruption? What is going on here?
Let me put this simply. There may be a political issue for the PPM but that is entirely separate from the issue of bearing the cost of protecting the constitution as well as the constitutional issue of parliamentary qualification. The political issue is for them to decide internally. The cost issue appears to me to be at least potentially a complete red herring.
Previous posts appear to correctly suggest that the cost issue can be dispensed with quite simply through the issuance of a formal complaint, assuming that the police and Solicitor General’s functions in this country would not succumbed to political pressure.
Specifically, Mr. Duckworth appears to allege that one aspect of the constitutional issue may involve an ongoing offence relating to participating in the LA of individuals who are constitutionally not qualified to be MLAs. If such an allegation regarding an ongoing offence were to be proven before the Court, then the initial complaints made prior to the date of the election about disqualification would necessarily be proven as well.
The non-issue in relation to the economic cost relating to a challenge of qualification to sit as an MLA may be seen from the following as I understand previous posts. A complaint to the police or to the Solicitor General’s department in relation to this type of offence ought to be treated in the same manner as a complaint relating to any other offence. The police ought to investigate and if the police find that there is sufficient evidence to justify action, they ought to recommend to the Solicitor General’s department that appropriate judicial determinations be sought in relation to the alleged offence. Similarly, if convinced by the evidence produced, the Solicitor General ought to bring the matter before the Courts for a judicial determination and pronouncement of penalties regarding the offence. The cost of the police investigation and any prosecution by the Solicitor General’s department are borne by the public purse, not by the persons bringing the initial complaint in the same way that a complaint about a robbery is borne by the public purse. Hence those concerned to protect the Constitution rather than with the balance of power in the LA, ought to have no concern regarding cost, assuming of course that the public service has not succumbed to political pressure.
Perhaps an MLA should ask those involved to outline to the LA their compliance or non-compliance with the qualifications for election. Hansard transcripts ought to be good evidence and failure or refusal to answer the questions could constitute a contempt of Parliament itself justifying removal from the LA
In the real world, no one will cease to actually function as a member of the LA unless the Grand Court pronounces that such a person cannot sit as an MLA. Nothing other than a judicial pronouncement has any chance of removing anyone from the LA and there is no chance whatsoever that anyone in an official capacity will place anything before the courts in this regard. Any thought to the contrary is pure fantasy.
Mr. Duckworth you are truly an honorable man, very soft spoken and a man with immense knowledge.
I thank you for taking the time to going through each point and detailing your responses, it certainly made it much easier for the average person to understand.
I helped me to make an more informed opinion of the violations of the Constitution.
The AG and the HE all deserve to be charged.
"Duckworth you know better.
If a man says he committed an offence, but in law his (in)action do not actually amount to an offence, then the man has committed no offence, regardless of what the man believes.
Perhaps now that the PPM has lost you can return to practicing law. I have heard that the more you practice that the better at it you become".
Mr. Duckworth has a written a clear and insightful exposition of the matter. You have misunderstood the point: the candidates have not stated that their failure amounts to an offence or disqualification but they have admitted the facts that constitute the offence and disqualification.
I don’t believe Mr. Duckworth has ever left the practise of law and, unlike you, he is clearly very good at it.
Drafting and filing a formal complaint in relation to an alleged continuing offence costs nothing. It looks as if Mr. Duckworth has already gathered facts and done the analysis so why does he not formalise the complaint and get the process rolling if he thinks he is on firm ground.
As a point of information, what of the Constitutional role of the Speaker in ensuring that the proceedings of the LA are conducted in full conformity with the Constitution and other parts of what passes for the law of the land these days? Or is it terribly naive to expect any element of government other than the judiciary to stand up these days?
As a further point of information, am I the only one who is starting to think that the Governor only invokes the concept of "good governance" when the UK is trying to de-stabilise and discredit Cayman and refuses to do so when those in positions of responsibility in Cayman seem to be a doing a good job of discrediting Cayman institutions without the assistance of the UK?
You honestly don’t get it do you.
This is a fine line in the sand being drawn between two parties.
UDP wants to make this a PPM Vs UDP issue and PPM knows that so they don’t want to challenge. They would much rather it be done the RIGHT WAY which is astounding that our AG (who should be removed from office) has not done.
So PPM is faced with a bad situation. If they file the few thousand UDP voters will be very upset at them because they stripped them of their vote and if they are to go into a bi-election they would face a terrible backlash. While they want justice served they are entangled in this "why do we have to pay the price for this when it’s the law being broken" situation.
Ooh and by the way YES it does cost and not only does it cost but the ensuing legal action will cost a tremendous amount also and keep in mind their supporters just came off a campaign spending money to make the rum for office now they have to foot another bill. It’s not as simple as one would think.
Here’s your next arguement answered before you state it. Yes Alden is a lawyer why doesn’t he do it or one of his friends. Again it becomes a UDP Vs PPM issue.
What ever you are thinking trust me they have analysed it to death and the prognosis is not good. Keep in mind those same supporters may look at this and say "huuuummm what do we stand to gain from this, 2 more seats but wouldn’t that make it 7 vs 7 with 1 "independent". Tell me who’s side do you think Mr Independent is coming down on when he stated he will support a UDP government. Notice he did not say he will support whichever government is in office he said and I quote he will support a "UDP" government. So it’s going to be 8 vs 7 still.
So, there you go. Would you fork out 1/4 to 1/2 million dollars to in truth only gain two seats but still no power? Not everyone is so noble.
Judicial Review of the AG and Governor before an independent Judge (from England please – as the Constitution is an English Statutory Instrument) would be fun to watch. We should not worry about the expense. We could easily cover that by selling tickets. I would not miss it for the world. Their power exists only because of the constitution and they can only operate within it. The fact that Chuckie and Oz are not claiming to be elected does them credit. Mark and JJ. can we make this legal? You will still get elected – but can we do it within the Law?
Your party is planning a new election in BT anyway for an extra member – so there is no extra cost in a by election if you do it your way – jut a couple of extra names on the ballot. What could be more democratic than that?
Anton – you do not need to practice anymore. You are a damn good lawyer. Ever think of Government service?
I would buy several tickets.
I couldn’t agree more. The AG should be impeached or whatever the term is here for not abiding by his oath.
The governor should have to answer for his actions also because he knowingly swore in people who by law was not able to be swore in. And it’s not he did not know because he well knew so he can not say it was because it was not proven. They admitted to it and the fact that it is in black and white means proves the fact.
Blah blah blah………would you challenge this or shut up??? Your killing us! I am not
a UDP fan but I surely don’t want Ossie or Chuckie back so unless independants going
to replace Mark and Dwayne then I say leave things as is!
If the constitution is so important then why isn’t your party challenging it?
PPM still waiting on someone to do it for them……
Kai all I have to say is WOW!!
Your lack of understanding is mindboggling…
Let me bring this to you in maybe terms you can understand and maybe for others also to understand.
OK. Say your house was robbed and your family member was killed or raped or something terrible. There is a policeman and he not only knows the crime was done as does everyone in the neighbourhood and but he knows and the person who did it admitted to it.
Now with that above who do you believe should be the one to take him to prison:
1) You. Afterall it was you that got robbed. You were teh one wronged.
2) Your neighbourbecause well he knew the crime was committed and he knew who did it and since the person admitted he should be the one to do it afterall no one else is doing it.
3) The Policeman since he swore an oath to uphold the law and since he not only knows who did it but they admitted he HAS to do it.
Now do you think that a neighbour or the person wronged should act before the policman does or take justice into their own hands?
Laws are created and policemen brought into play so that people like you and I do not have to take justice into our own hands because of many reason such as level of punishment. I might believe because your leaf fell into my yard that you should be put to death but would that punishment fit the crime? Do you see my point yet?
The policeman should be forced to arrest this person the same way the Attorney General should be forced to uphold the constitution for which he swore an oath to defend. Why should Ossie or Chucky have to pay a second time for a wrong? Let’s not loose sight of the fact that a law was broken here not just something we would like people to do but something they were required by law to do. The AG if you ask me should be impeached and removed from office because without a doubt he is being influenced either verbally or mentally. By not acting in his sworn duty he is saying I am taking a side on this matter.
I hope you grasp this now because if you don’t I think there is no hope for you. You truly can’t see beyond your UDP spectacles.
“Your lack of understanding is mindboggling..”
Great! More BLAH!
Two wrongs don’t make a right! Yes, the AG should up hold the law but he didn’t
so now what? The PPM shouldn’t do anything either?
The PPM (who as a GT voter I helped secure 2 positions) should
step up to the plate and represent us as the people that they promised to
represent. Challenge it! We have obviously been let down by the AG so the PPM should
hear the people’s cry in the community and step up to the plate. Do they
really think that constantly complaining about it or putting people up to
writing about it on CNS will solve anything? We all know the AG is not
going to do anything about it so what is the point of talking about it if
nothing is going to be done by anyone????
I think I understand exactly what is happening here….the PPM is more
concern about securing votes and keeping friends than upholding the
constitution that they claim to be so concern about! Give me a break!
They don’t want to challenge this because they don’t want to suffer from
a possible backlash if they go to a bi-election. And worse yet, lose any future
votes for 2013. That’s the real reason the PPM doesn’t want to
challenge this! It has nothing to do with the constitution, they are simply
milking this for all its worth and hoping to push someone into challenging
it so that they can have the three seats in BT. Althought this still won’t give
them the majority but they are obviously bitter that they lost and is using
this constitution matter for their own war games. And all at the expense of
the people’s genuine feelings about this breach of our constitution!
I wasted my votes in 2009 for the PPM but thanks to the PPM exposing their
lack of knackies in this matter, I will not waste any votes in 2013.
"They don’t want to challenge this because they don’t want to suffer from a possible backlash if they go to a bi-election. And worse yet, lose any future votes for 2013. That’s the real reason the PPM doesn’t want to challenge this!"
If you would reflect a little you would realize that this argument makes no sense.Clearly the PPM are urging the AG to make the challenge and BT voters will know that, in the unlikely event that it is challenged by the AG and results in a by-election (note spelling), it was instigated by the PPM. Accordingly, if there is to be a backlash it will happen regardless of who actually made the application. As someone who claims to have been a PPM supporter your post has made that clear.
“Accordingly, if there is to be a backlash it will happen regardless of who
actually made the application.”
Bring on the BI-election! So that wecan clean out the PPM all together in BT! I vote
GT but I hear the BT voters can’t wait to finish what they started through a BI-election!
Well written Mr. Duckworth, even if optimistic to the point of being quixotic in the political reality that is the current Cayman Islands. Now do something to transform your words into deeds if you truly believe what you write.
This matter should be brought to the highest court. It’s about tme we heard a good legal opinion from such a highly respected lawyer such as Mr. Duckworth. I think it’s downright shameful to have an Attorney General appointed by the constitution as its defender (or as Mr. Duckwoth put it a ‘referee’) who is unwilling to do his job in an unbiased manner. The rule book (constitution) is there to be followed/defended/upheld by the referee (Attorney General). I doalso agree with the earlier poster who said that the missing question was how do we the people petition to have the said persons action/inactions investigated or have that person removed…especially since he is the highest authority on legal matters in the land.
Why doesn’t Duckworth take this to court?
Why doesn’t Mr. Duckworth seek judicial review of the Attorney General’s decision to not challenge?, or better yet, why doesn’t Mr. Duckworthand his merry friends within the PPM challenge the matter and stop writing us to death about it.
How about you Mr Why doesn’t Mr. Dickworth foot the bill?
What a fine piece of legal analysis. This article is truly a gift to the Caymanian people, and it’s conclusions are incontrovertible.
There was one more question, however, that Mr. Duckworth ought to have added to his opus:
"Should the Attorney General be removed from office?"
I’ll answer that one for him:
"By sundown."
I would say YES. Resoundingly!! His actions were in contradiction to his duties and his sworn oath and his explanation as flimsy as the crap it was written on.
His actions were clearly on one side of the party lines and hence his judgement is obviously compromised. To have followed the letter of the law would have been only fulfilling his DUTY not choosing a side. It matters not what the result is only that he was doing his sworn duty.
Duckworth you know better.
If a man says he committed an offence, but in law his (in)action do not actually amount to an offence, then the man has committed no offence, regardless of what the man believes.
Perhaps now that the PPM has lost you can return to practicing law. I have heard that the more you practice that the better at it you become.
What kind of shuck and jive is that crap!!
The law is the law and if it is broken it matters not what you think but what teh law states. You are short of rediculous to suggest such a notion. It is not up to thoughts it is up to the law.
He committed an offense. he did not fulfill the legalities of the constitution as it relates to being elected to office.
Sheesh