Lawyers battle over challenge
(CNS): The legal battle over the legitimacy of the election challenge to two Bodden Town MLAs began in Grand Court this morning (Friday 24 July) before Chief Justice Anthony Smellie, who heard intense legal arguments from both counsels. Lord Pannick, QC, representing the defence, put the case that the only way an election challenge could be brought against Members of the Legislative Assembly is through an Election Petition, while Gerard Clarke argued that the plaintiffs’ case rests on the Constitution and the issue of qualification, which could not be confined by the Election Law.
The arguments played out in front of a crowded court room, which included a strong show of force by the United Democratic Party government members, including Leader of Government Business McKeeva Bush, and party supporters. Both of the challenged MLAs, Minister Mark Scotland (pictured above) and back bench MLA Dwayne Seymour (below) were present at the defence table.
Following the chief justice’s explanation that the proceedings were being held in open court because of the obvious public interest, Lord Pannick opened for the defence with the argument that the Grand Court had no jurisdiction because any challenge to the validity of the defendants’ election could only be brought via an Election Petition and the plaintiffs had not done so.
By filing an Originating Summons instead of a Petition, he said the plaintiffs were abusing the process and were seeking to by-pass the obligation in a petition to file the challenge in a specific way. He explained that the plaintiffs would have had to file within 21 days (an irony not lost on those involved) of an election, publicly display the grounds of the challenge and provide financial security to the court.
Lord Pannick added that while the challenge was a constitutional one, the Constitution itself had provided the means by which any challenge could be brought through its provisions for an enactment of the Election Law. In short, he argued that the Legislative Assembly had passed the law to provide remedy for any challenge and that included ones regarding qualification. He noted that should anyone be allowed to bring a challenge outside of those provisions, which included safeguards of the public interest through issues of expediency and fairness, the Election Law itself would be made redundant and “would frustrate the intentions of the Constitution.”
Lord Pannick noted that, since the UK courts took jurisdiction of election challenges in 1868 and because of the sensitive nature, no such challenges have succeeded through any other means but by petition. He noted too that the need to be certain who is elected to the legislature is of such public importance, the speed of dealing with challenges was paramount, and hence the strict process by which they can be made has been adhered to by the courts.
He insisted that there simply was no other route for the plaintiffs to seek remedy but by petition, and asthey had failed to do that the court must strike out the summons.
By contrast, however, Clarke made the argument that in the Cayman Islands the Election Law was not defined as the exclusive route for an election challenge. He said that in this case the plaintiffs were bringing a challenge which dealt purely with the defendants’ right to qualification for the election and not the election itself, which is what the local Election Law was concerned with. He said the law did not have the power to limit the right to apply to the court conferred by the Constitution.
Clarke argued that the Constitution was wider than the Election Law, which did not cover all questions concerning elections. He added that the language wasdifferent and that the Election Law was concerned with the election process and not qualification of candidates. He compared the issue to a race in which the question was not whether the runners had cheated but the fact that they were not qualified to be on the starting line in the first place. “The Elections Law Petition addresses the race but not who is entitled to enter the race,” he said, adding that it was the Constitution itself that was concerned with qualification.
Addressing the accusation that the plaintiffs were seeking to avoid the obligations of the petition, Clarke said the plaintiffs were making a stand on the constitution and the choice of remedy for the challenge was deliberate. He said the Election Petition was not the exclusive route and that the difference in language between the Election Law and the Constitution was important and relevant.
He noted that his learned friend’s argument would suggest that the Election Law trumped the Constitution, which he said would be indeed surprising given that the Constitution is a higher law. Clarke argued that the Election Law was designed with precise limits for good reasons, but if it had been crafted to be a comprehensive code it would have indicated clearly that it was the only and exclusive route to challenges — something he said the law did not do.
Clarke pressed the point that if an MLA was found to be disqualified after the time limit of a petition, a challenge still had to be allowed and that would be through the courts. Therefore, there was no reason that the remedy the plaintiffs had chosen was not legitimate just because the disqualification was raised before the election.
He denied the Originating Summons was an abuse of process and said the Election Petition was simply not an appropriate route for this particular challenge. Clarke stated that the issue surrounding the MLAs in question was “constitutional nullity” not cheating in the election. Therefore the court did have jurisdiction to decide. He maintained that the plaintiffs’ case was all about qualification under the Constitution, and that an Election Petition was not something the plaintiffs were avoiding but something which did not offer appropriate remedy.
The proceedings drew to a close around 4:00 in the afternoon as the two legal teams conclude their argument and the chief justice announced he would adjourn to consider his ruling on the matter.
The challenge was made by six voters from the district of Bodden Town who claimed that Seymour and Scotland were not qualified to be elected as they failed to gazette the details of government contracts held by their respective companies before the dealine laid down under Section 19 (1) (g) of the 1972 Cayman Islands Constitution.
If the chief justice does not strike out the summons, the legal teams will move to further legal battle to establish the legitmacy or not of the two Bodden Town MLAs’ election to office, which could result in a by-election in the district.
Category: Headline News
I agree. We need Chuckie back in there so he can deal with Mac since he seems to be the only one that is prepared to challenge him.
I have never seen a more passive opposition. Kurt picking mangoes in Northward, Alden at South Coast, Tony walking around like a zombie in slippers and a baseball cap, Arden smoking and smoking and smoking, Moses sitting on the fence.
God help us !! Wake up PPM !!!!!
Here comes the BT By Election. Chuckie and Ossie back in. PPM 7; UDP 7 and Ezzard is King or King Maker….which is it going to be Ezzard ???
Here comes the BT By
Here comes the BT By Election. Chuckie and Ossie back in. PPM 7; UDP 7 and Ezzard is King or King Maker….which is it going to be Ezzard ???
What an interesting set of events that will make for. A government who has to agree on things. OMG!!!
That might be just what Cayman needs!
Seems the AG is only one of the useless UDP cronies that ignore law and order. I don’t really see anyone saying anything about Kearney. If Gomez had done his job and disqualified Mark and John John we would not be in this mess. Not to mention the other incident with UDP GT candidates illegally handing out those voting instructions at the polling station(s) on election day. Correct me if I’m wrong but I don’t think until this day that he has called for an investigation into this. He just turned a blind eye to that incident as well. I imagine this has been swept under the rug.
These men had their agenda to get UDP in power. Had they done the right thing and upheld law in this land, we would have a different government today. There would not have been any chance for possible king maker in Ezzard. Had Gomez done the right thing the legal ‘king’ would have returned to the throne. I don’t mind a change in king as long as it is done the right way with all laws adhered to.
Gomez is definitely the king maker in all this, albeit by diregarding our laws. I understand Bulgin’s disregard of the law in this case and his blind loyalty to Mac, but i’m still trying to figure out Gomez’ actions or lack there of in all this. Someone please enlighten me or set me straight.
The AG…..for someone who seems to do nothing in this Country, why is it that he is guarded by security 24/7?? Another waste of public funds! He needs to go!!…..unfortunately he not going anywhere thanks to Mac & the UDP!
So many of the postings to this Article have made valid points about this entire mess including the AG and his uselessness don’t think I need say anymore.
Jesus! You must be joking! Is the AG still being guarded 24/7? Say it’s not true. If he were in his home country, JA, and was a judge sentencing men to hang, he wouldn’t have this protection, so what are we protecting him from? Is Cayman that lethal a place? Of course not. The worst the AG has to face is complaints from posters to CNS; the criminals are completely uninterested in him as irrelevant.
The role of the AG in Cayman seems to be one of don’t ask to don’t tell. Its amazing that someone who holds such legal strength in an island territory often bosterious of its legal capacity. The AG is unaviable to the media and is often chided in all too quiet circles for ignoring the government’s legal misteps. It would be interesting to note how much time the AG spends off island versus in the office doing what he is supposed to. It would also be interesting to see how many discarded complaints or inquries the AG office has made in the past 4-5 years.
Cayman, watch out. Us expats can leave anytime we want and when your domestic b.s. begins to overflow, which it is already doing, watch out for those name plates, beacuase the will by flying off buildings left and right. Expats like to be in control, yes, but we also like to trust the natives and some scary thingsare baking in CI. Many fear and are actively speculating that ten years down the road Cayman will be used up. Teeming with uneducated locals and rising costs, Cayman will not be as a profitable venture as it once was. The rule of law will do a lot to satisfy the forign power players that, lets be honest now, shape government policy.
Anyways, there is something wrong in Cayman. Laws are ignored all the time by everyone and no one is held accountable. Many laws are not even written and those that are can be stepped over with ease. No enforcement and no worries. Welcome to Cayman. AG, you just keep forgeting to write all those good laws people keep sending your way.
In response to
Why do you care where the plaintiffs got the money from? They did not get it from you so don’t worry about.
The article suggests that it was not the people who brought the petition that hired Lord Pannick, but rather that it was the politicians who are trying to stay in power.
In relation to the actions of any politician the answer to your question should be obvious. Politicians have the ability to take and spend our money. They are supposed to take and spend our money only for the good of the people and not to further their own interests. Unfortunately power, the pursuit of power, and the desire to hang onto power at all costs, corrupt.
When politicians with the power to influence the disposition of government contracts or other government property suddenly become rich without any explanation, or their immediate family become rich without any explanation, the people should care.
When politicians with the power to influence the disposition of government contracts or other government property start to buy expensive things, whether boats or property or lawyers services, without any visible means for doing so, the people should care.
When politicians try to remove independent oversight of their actions the people should care.
Look at what is happening in TCI. That is why we should care where our politicians get their money from.
Well Said To Anonymous (not verified) on Sun, 07/26/2009 – 10:57
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And it doesn’t matter if its UDP or PPM. Past and or present we should be concerned. On the campaign trail they point these things out. Trying to paint a picture of each person in each party. Tit for tat. Chuckie saying Mac corrupt and to look at Turks. But what gets me is Chuckie was Mac sidekick for years, then Mac saying Kurt and Alfonso corrupt and Chuck lying, so big question is who is really corrupt and lying?? We should be concerned I totally agree. Overnight richness and worldly possessions they had until they became politicians? We should be concerned not only as voters but as humans with the ability to think and reason on or own I.e. Not influenced.
"If there is a God, he/she will take out the trash here."
There isn’t. Deal with this yourself.
The AG was appointed by McKeeva (along with his co-horts Jefferson and McCarthy) so he is going nowwhere!! We at the UDP will see to this… Sorry but find another cause to fight my dear.
There are now, so many issues under this umbrella, that it is hard to discern them all…
1.Who was in charge of the Legal Drafting Department when these ambiguities were allowed?
2.Why did the AG (and who allowed him) to remove himself from this issue, under the guise of “politicization”?
3.In most Western countries would the AG not at least establish a commission to advise him/her – recuse him-herself – or be replaced?
4.Why would the plaintiffs and their lawyer(s) decide to wait until after the magical “21” day deadline?
5.Who hit the “Panic(k)” button and who is paying the fees?
So many questions, so few answers…
Why do you care where the plaintiffs got the money from? They did not get it from you so don’t worry about.
A win on the basis of this type of technical argument is not a win for these MLA’S. If they had any belief in the substance of their case they would fight the real issue like men not hide behind technicalities like cowards.
The skills of Lord Pannick QC do not come at an insignificant price.
Somebody must be counting on winning, or the JEP power generation contract going through quickly or maybe both.
Which also leaves one to wonder where the Plaintiffs are getting funds to pay for their QC? He is just as expensive as the one for the BT MLAs. Just asking?
Sounds as if there needs to be some sort of further clairification in both our consititution and the Election Law in order for the electorate to properly deal with such occurences in the future. If it is a petition or an originating summons that is required to taks such matters to court, then lets be specific and state it accordingly in the constitution.
The AG is a joke. Fat salary. Do nothing. He should go ASAP.
If there is a God, he/she will take out the trash here.
Dear CNS,
Thank you for the clear and precise reporting of what must have been a complex legal delivery.
Who is paying the fees of Lord Pannick QC? He does not come cheaply.
Interesting to note that the defence is based on tecnhicalities, not that they did they right thing.
And where is the Attorney General
we pay to uphold all Constitutional and legal matters
And where is the Attorney General we pay to uphold all Constitutional and legal matters in the Cayman Islands??
He is missing in inaction!
The biggest pile of uttered rubbish was the claim by the AG that if he became involved in the matter of ensuring BIG MAC’s party compliance with the Constitution then that would be political. By not upholding and defending our Constitution against the violation by BIG MAC’s party Mr. AG that you are not only political but partisan political, not wanting to offend your BIG MAC to whom you owe so much.
Mr. AG you should have been the one leading the charge to defend our Constitution, not cowering in the partisan political bushes.
Mr. AG by not submitting the matter for argument in an open court trial you failed in your duties to us the Caymanian crabs that are so easy to crush.
We know that you call yourself a Caymanian now because of the Caymanian Status BIG MAC gave you in 2003, but you are not really interested in upholding our Constitution or the long term interests of the Caymanian people’s freedoms, just appeasing BIG MAC to see what else you can get during this current term in office.
Why do we have to depend on the brave "Little People" to defend our Constitution who are all now at great risk because as sure as night follows day, the victimization that will follow?
Same leopard, same spots.
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AMEN!!!
The AG should be removed from office for failing to do the job he has sworn to do. By not acting he in fact laid his cards on the table as to which side he was actually taking whether he believed it or not.
He should be removed immediately pending an investigation.
The constitution is all we have people. It upholds each and everything we stand for.
While I don’t see Mark & Dwayne as BAD people I see them as totally and utterly now UNPATRIOTIC. Mark’s comments will be a catch phrase for all time. "A minor technical thing". OOh I broke the constitution, it’s only a minor technical thing.
If they had anything in them that gave them love of country they would have stood up and withdraw from the elections and simply explained to their supporters that while the believe whole heartedly they were a better answer for the Bodden Town people they also beleived that NO ONE is above the law. By staying in this and fight this process they are saying quite the opposite and believe me BIG MAC see’s it the same way. Only look at his various tenures as the leader of our country to see the menuevers he has taken part in to understand what I mean.
As a BT Voter Mark nor Dwyane will never and I mean NEVER see a vote from me in life and I would ask every Bodden Towner to stand up and tell them the same alike.
Just for a second take a little courage like our brothers did in Honduras. Grow some spinal fluid and stand up for our constitution.
Independent oversight designed to insure that laws are followed is such a nuisance. Just think how much simpler things would be if MAC had the power to treat judges like he does board members on the statutory authorities- he could make sure that he always had judges he could "work with".