MLAs say challenge too late

| 30/06/2009

(CNS): In an ironic twist, the two Bodden Town MLAs challenged by voters in the district have filed a response to the election challenge against them asking the court to strike out the proceedings because they claim the challenge was filed too late. Minister Mark Scotland and backbencher Dwayne Seymour responded to the summons with their own legal documents, stating any challenge to their election should have been filed under the provisions in the Election Law which says an election petition must be brought within 21 days of the poll.

The summons by Gordon Solomon, Sandra Catron, Ronald Ebanks, Jean Ebanks, Roxanne Basham-Ebanks and Michael McLaughlin was filed in the Grand Court on 16 June (around 26 days after the poll), and suggested that neither Scotland or Seymour were qualified to be elected under Section 19 (1) (g) of the Constitution as they had missed the deadline to file their interests in companies that had business contracts with the government.

Both responses to the challenge filed by the defendants’ attorney Thorp Alberga on 29 June state that the originating summons was not filed in accordance with the either the Election Law or with rule 93 of the Grand Court Rules and should, therefore, be struck out.

Seymour and Scotland both set out in their affidavits that they were elected to the Legislative Assembly in the 20 May Election in the district of Bodden Town; that they were declared as successful candidates by the returning officer and their writs of election have been submitted in evidence. The two UDP MLAs state that the plaintiffs are alleging that they were unduly elected and that their election to the LA is not valid.

However, the summons submitted by the six Bodden Town votes actually alleges that the two candidates were never qualified to be elected and asserts the challenge under the Cayman Islands Constitution and not the Elections Law.

It is evident from the challenge and the response that right out of the gate the first legal argument will focus on whether the challenge is or is not brought under the Elections Law or the Constitution itself. With the constitutional requirement for qualification coming after the Elections Law’s requirements for nomination, the dispute is far from clear cut and likely to lead to legal gymnastics before either side sees the inside of a court room.

The controversy surrounding the disqualification under the Constitution of Seymour and Scotland because of their failure to meet the criteria laid out in Section 19 (1)g regarding the declaration of public companies before the general election in May, has not abated since the two MLAs were voted by the electorate as first and third elected members for the district.    

None of the losing candidates chose to make a challenge and People’s Progressive Movement Leader Kurt Tibbetts said it was the role of the governor and the attorney general to uphold the Constitution. Both Stuart Jack and Samuel Bulgin said it was a matter for the courts to decide and chose to abdicate whatever lawful responsibility they may or may not have for ensuring the Constitution is upheld. The Election’s Office has, from the very beginning, stated that it was not a matter for their office as the alleged breach was of the Constitution and not the Elections Law.

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  1. Anonymous says:


    We uncover the dirt in the Cayman Islands dirty underground
    Cayman Islands recruiting the only Attorney General in the region
     with the fortitude to uphold Constitutional Rule of Law
    Overheard on the clicking claws coming from the Crab Hole communications room -Bulging Bulgi has bulged too much and will soon burst, he could no longer restrict the ignoring of the breaking of our Constitution and laws.  The "little people" of Bodden Town will do the job until the replacement Attorney General arrives.
    The UK Government is now secretly recruiting the Honduran Attorney General Luis Alberto Rubi to replace Bulging Bulgi. Mr. Rubi has proven to the world his determination to ensure that the Honduran Constitution is the supreme law and it will be followed in Honduras. He is expected to arrive in the Cayman Islands after the next constitutional Honduran election in November 2009.
    Some greedy Chavez intimidated Governments needing Venezuela’s oil and money criticize the upholding of the Honduran Constitution by their Supreme Court and Congress. 
    However, Mr. Rubi is widely recognized by democratic thinking people around the world for following the Honduran Constitution and laws in complying with their Constitution, laws, Congress and Supreme Court to fire their Constitution and law violating President and will arrest him if he returns to Honduras. 
    Bulging Bulgi pack your bags, because you failed in your duty to defend the Cayman Islands Constitution when you made the partisan decision favouring the UDP by refusing to present the Bodden Town election charade to the Courts for a decision. Presenting the facts to the Court would have been the correct non-partisan act. NO, it was wrong for you to decide on your own that all was well by refusing to defend the Cayman Islands’ people against the UDP acknowledged Constitution violation.  When you failed to do your job the "little people" of Bodden Town were forced to uphold our Constitution.
    Watch for the announced celebrated arrival of our new Attorney General Luis Alberto Rubi (yes, he speaks fluent English so he will pass the Immigratio language test)!
    OH, for a few other good democracy loving men and women in Governance.
  2. Hatty Tudor says:

    Since Monday is the Constituion Day holiday do the UDP just ignore that too any keep on working?

  3. Anonymous says:

    Consider this. If the application to strike is successful, the matter ends there and John and Mark remain as MLAs for the 4 year term. If the application to strike is unsuccessful, it is foreseeable that appeals to the Court of Appeal and if necessary the Privy Council on that preliminary point will be filed. Such appeals may take more than 4 years to hear and in any event the cost of even contesting such appeals would easily exceed what most mortals earn in a lifetime. On that basis, the wording of the Constitution in relation to the eligibility of John and Mark to be elected is irrelevant in a practical sense. It is highly unlikely that any person seeking to uphold the Constitution but not backed by the deep pockets of certain political party supporters (who will undoubtedly require corresponding political favours), has any hope of even staying the course in the courts.  Thus, whatever happens, John and Mark are likely there for the duration of this Legislative Assembly. He who has the gold rules  – that is the Golden Rule in Cayman these days.

    • Anonymous says:

      "If the application to strike is unsuccessful, it is foreseeable that appeals to the Court of Appeal and if necessary the Privy Council on that preliminary point will be filed".

      Section 23(2) of the Consitution states: "Any questions whether a person has been validly elected as a member of the Assembly…shall be determined by the Grand Court, whose decision shall be final and not subject to any appeal"

  4. anonymous says:

    Well meh dah’lin if you thinks Ozzy failed as a leader of his Community I sorry fa you when Mark & John John finish with ya cuz if they think nothing of what they have done from even before getting elected, there’s no telling what else they willing to do without apology or regret… about failure, not just to a Community but to an entire nation look no further than your two brand new BT MLA’s…

  5. anonymous says:

    ‘Minor technical Thing’ Mark & John John…..wha happen? Never heard of that before? Hahaha….dis a good one! Who da hell advising them?? Obviously do not care that we going take this as a ‘Joke Joke’…..but we all know wha UDP is best at….bending da rules – only dem allowed to do it though…so let’s just wait for confirmation that the Court goin throw out the petition cuz we know it coming!

  6. Anonymous says:

    Their response is total HOGWASH! Mark and John John are playing games here and the people of Cayman should take note.

  7. Anonymous says:

    Please give me a break here Mark & (John John!)

    So it is okay for you guys to be late and violate the Cayman Islands law and Constitution Section (19) but it is not ok for the voters of Bodden Town to file their challenge late?

    And you BOTH have the nerve to response to the election challenge against them asking the court to strike out the proceedings because they claim the challenge was filed too late?

    A very SMART move for BOTH of you! 


    What else can we expect for the FUTURE of the CAYMNA ISLANDS?

    Is this what you want our YOUTH to learn?

    SHAME, SHAME on BOTH of  YOU……………… 


    • Anonymous says:

      Please give me a break here Sandra (Gorda & others)

      So its ok for you guys – assisted by lawyers – to be late in filing your claim against the elections, but its not ok for these two nice gentlemen that the people voted for to have been late in filing contracts the whole civilized portion of the island new about?

      Sandra & crew, please exit stage left.

  8. Richard Wadd says:

     Not so sure about the ‘Late Filing’ statement (a Legal Opinion here please).

    The FILING FEE was Paid within the alloted time-frame, which is the Primary Step in Filing the Documents. The ‘LAW’ does not specify the actual PHYSICAL Filing of the Documents ….

    …. this COULD be just a "…Minor Technical thing".

    What goes around, comes around.

  9. Anonymous says:

    I see it like this. If the people of Bodden Town wanted Ozzy back in they would have elected him in. He had 4 years to prove himself to the community and he failed there is no one here  to blame but him. He failed as a leader for his community!

  10. Citizen JC says:

    "Legal …ease"

    You decide to take any matter to court…you get "legal.. ease"

    Why should it be any surprise that this matter has becomes a technical one . Isn’t this what the 6

    individuals wanted. It certainly wasn’t about taking a rational stance.



  11. JUDGE says:

    By filing this response both Mark and John John have implicitly admitted that they are both disqualified from holding office as MLAs but are instead arguing that one one can touch them now because in their view the challenge was filed late.

    This is very interesting because that arguement WILL fail in the Grand Court and as they have not denied that they are disqualified, their seats will be declared vacant once the Grand Court strikes down their argument about the challenge being filed late or the "Votes thrown away" principle will apply and Chuckie and Ossie will be declared the winners as they were the two candidates that lost their seats by slim margins in the general elections.

    If the first scenario plays out then Governor Jack XXX will have no choice but to call a by election within the timeframe set out in our constitution. If the second scenario plays out then Governor Jack XXX will have to swear in Chuckie and Ossie as the other two MLAs for Bodden Town. I can see the look on his face now as he swears in Chuckie, the only former Minister with the balls to request for his recall to the UK. 

    • Anonymous says:

      "By filing this response both Mark and John John have implicitly admitted that they are both disqualified from holding office as MLAs but are instead arguing that one one can touch them now because in their view the challenge was filed late".

      Not correct. This is what is known as a preliminary issue. In no way does it negate any substantive defence.

    • Anonymous says:

      I think we need to remember that they did not brake a Election Law.  The Election Law states that it would have to be filed in 21 days.  However, we are talking about the Constitution the Law of the Lands and that has no time frame that a challange can be filed……

      For those who would like to see this challanged please give it a little time, don’t give up so quick. 

  12. Anonymous says:

    Next we’ll find that the two MLAs have raised this point about Sandra and co…. too late. they should have said this last week.   In a world of serious issues it is always amusing to see village politics in action.

  13. whodatis says:


    I’m absolutely loving this!!

    Good ‘ol "Cayman / Island Time" is still very much in effect in the 21st century!


                                                   — SCENARIO —

    Charlie: Johnny…ah’ gettin married Sat’day! I wan’ inwite yu n ya fam’ly!

    Johnny: Yeah?! Congrats man!! Wha’ time it ga’ be?

    Charlie: 6 o’clock…Church a’ God, Sawannah’!

    Johnny: Alrite Charlie…Ah see ya den!

    (Saturday evening)

    Johnny and family stumble through the doors of the half-filled church – huffing and puffing at 6:42 pmsharp!

    Johnny: Boy, Charlie…ah sorry ya na – I wha tryin’ mek it on time but…ya know how it be!

    Charlie: (Pffshay) Don’t worry ’bout it Johnny ma’ friend…she nah even leave da’ house yet…sit down and get comfortable, ya hear?!

                                                                 — THE END —


    Bottom line folks…we don’t fare well when it comes to deadlines, schedules and the like!



    All in all – an election is a democratic process and as far as I am concerned the democratic political will of Bodden Town was realised on May 20th – end of story!!

    In any event, I am proud as a Caymanian to say that the only election mishap that we had to contend with was a late filing of interests that in the end revealed no mentionable issues. Compare that with recent political developments in the USA / UK / Europe / Africa / Asia.

    Take a chill pill folks…and please – for the love of the Almighty…ease off the PPM vs UDP rhetoric!


    All the best Cayman


  14. Anonymous says:

    Ironic…"small technical thing"

    The story states it correctly, an "ironic twist".  I think that the people who filed the petition should respond by saying "it’s just a minor techincal thing", as these candidates had said about their filing.

    They say ignorance is bliss, but in this case ignorance is just pure incometence for these two non-candidates (not duly elected members).  Cayman never ceases to amaze me!

  15. Anonymous says:

    It is a telling demonstration of these MLAs response to this situation in that they do not proclaim their innocence rather they attempt to use the laws that they so comfortably broke when it suited them to claim that the law’s time limit has expired.

    Sadly, it is incredibly ironic don’t you think?

  16. Anonymous says:

    This is a battle of the heavyweights of mediocrity.  What a truly unimpressive bunch of people are on both sides.  If in the end the challenge was not filed in time I would not know whether to laugh or cry.  In some way it is a beautiful microcosm of Cayman politics,

  17. Anonymous says:

    You could not script this better in a Hollywood B comedy. .As I understand the current position it is that  the legal challenge filed to establish that a notice was filed late –  was filed late? God bless the Cayman Islands.

  18. Richard Wadd says:

     Shameful, shameful, shameful.

    Here are a group of Caymanians who, in the Best Interest of us all, have done what ‘NONE THAT SHOULD’, have…

    …. and how are we to repay them, for standing up for US ALL? ….. let’s just stick them with the Bill as well !

    Are we so nieve as to not realize the Importance of Constitutional Laws, and why they MUST be upheld, at ALL cost?

    The failure to uphold the Constitution, in whatever way, is the begining of paving the way for Anarchy and Dictatorship.

    The Constitution MUST be upheld, and Jack XXXX and that useless Bulgin need to go! They have FAILED Queen, Country and People.


  19. Anonymous says:

    The government (The Governor in particular) should have challenged these Individuals and upheld the constitution, they didn’t they let the poeple down. It took taime for them to fail us and now the people are challenging. the time take for the powers that be to drop the ball is the reason this challenge is late, its just a matter of consequence. Continue the challenge and up hold the constitution

  20. Anonymous says:

    I think this time Messrs. Scotland and Seymour are right.  I don’t know where counsel for the applicants got the bright idea that one could evade the time limits of the Election Law by failing to commence proceedings with an Election Petition under the Elections Law and opting for an Originating Summons instead.  On an earlier thread someone suggested that the time limits didn’t apply because the application was one under the Constitution and not under the Elections Law.  I hope that did not reflect counsel’s advice as it is misconceived. There is no such thing as an “application under the Constitution” if this is intended exclusively so that there should be no reference to any statute or procedural rule. The function of the Constitution is to set out broad principles, rights and obligations.  The machinery and procedure for giving effect to those principles, rights and obligations is provided for in laws and in the Grand Court Rules.

    The issue at hand is the validity of the election of Messrs. Scotland and Seymour.
    Section 23(2) and (3) of the Constitution read:   
    “(2) Any question whether a person has been validly elected as a member of the Assembly, or whether an elected memberof the Assembly has vacated his seat therein, shall be determined by the Grand Court, whose decision shall be final and not subject to any appeal”. t
    (3) (a) An application to the Grand Court for the determination of any
    “A 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;
    (ii) a person claiming to have had the right to be returned at such election;
    (iii) a person alleging himself to have been a candidate at such election; or
    (iv) the Attorney-General.
     Section 28 provides:
    28. Subject to the provisions of this Constitution, a law enacted under this Constitution may provide for the election of members of the Assembly, including (without prejudice to the generality of the foregoing power) the following matters, that is to say:-
    (a) the qualifications and disqualifications of electors;
    (b) the registration of electors;
    (c) the ascertainment of the qualifications of electors and of candidates for election;
    (d) the division of the Islands into electoral districts for the purpose of elections;
    (e) the holding of elections;
    (f) the determination of any question whether any person has been validly elected a member of the Assembly or whether the seat or any elected member in the Assembly has become vacant;
    The law enacted under the Constitution for the above purposes is of course the Elections Law. Sections 83 and 84 of the Elections Law state as follows:
    Petitions against elections
    83. A petition complaining of the undue election or undue return of a member of the Assembly (in this Law called an election petition) may be presented to the Grand Court by anyone or more of the following persons, that is to say-
    (a) a person who voted or had a right to vote at the election to which the petition relates;
    (b) a person claiming to have had a right to be returned at such election; or
    (c) a person alleging himself to have been a candidate at such election.
    Presentation of election petition and security for costs
    84. The following provisions shall apply with respect to the presentation of an election petition-
    (a) the petition shall be presented within twenty-one days after the return made by the returning officer of the member to whose election the petition relates…”
    The categories of persons who may bring an Election Petition under Section 83 of the Elections Law clearly reflects (with the exception of the Attorney General whose application would be brought on a different basis) the provisions of Section 23 of the Constitution and directly addresses the issue of the validity of the election of the candidates.
  21. A Concerned Bodden Towner says:

    You got to be kidding me….

    These too XXXX are going to act like it was okay to be TOO LATE in filing their declarations BUT its not okay to be late IF THAT IS THE CASE in Sandra and her people in filing their challenge?   Now if that aint the pot calling the kettle black then I dont know what is.

    I have seen and heard some things in my 40 years of life but this is the best.  So here we got Mark and (John John) who act like it is an oversight and OKAY to not file their declaration of interest in government projects on time and have total disregard for the Constitution.  HOWEVER they are going to use the TOO LATE to go against what Sandra and her people are trying to do.

    If I was not convinced that these too need to go then I am now.   I guess it is okay for them to cheat the system but others got to follow the law.   These politicians are worst than the ones in the USA.

  22. Anonymous says:

    Poor Sandra & crew

    I hope she remembers what happens to the person that loses, but just in case she has – they pay the legal cost of the other side.