Archive for August 3rd, 2009

Election challenge struck out

(CNS): Updated 8pm –– Chief Justice Anthony Smellie has rejected the argument presented by the legal representatives of the Bodden Town voters that their challenge to the qualification of UDP Minister Mark Scotland and MLA backbencher Dwayne Seymour to be elected could be brought as an originating summons. The chief justice struck out the summons, stating that the plaintiffs could not be allowed to bypass the process laid down in the Election Law. In an ironic conclusion he noted that if the time limit could be by-passed that would suggest there were not time limits on election challenges at all, which would undermine the law.

In a complex and what is likely to become a landmark ruling the chief justice took one and half hours to deliver his decision this afternoon (Monday 3 August). Although he struck out the proceedings based primarily on the fact that the Election Petition would have been the correct way for the plaintiffs to have made their challenge and not through originating summons, he made it clear that the attorney general (AG) could still, should he choose, make the challenge outside of the restrictions of an Election Petition.

Smellie said he had based his ruling on six points, starting in the first instance with the fact that the Constitution confers in Section 23 the power on the Legislative Assembly to make the laws to govern all election challenges. He said that, as a result, the LA had indeed passed the Elections Law, which has provided the method by which all challenges to elections can be brought, i.e. through an Election Petition. He noted the importance that all election questions are settled quickly with regard to the public interest concerning challenges because of their impact on the legislature.

Smellie agreed with Lord Pannick’s argument (for the defence) that any other remedy outside the Election Petition would be an abuse of process. He added that, as the plaintiffs are not the AG, they were required to bring the challenge via an Election Petition as any other method was, by design or not, by-passing the mandatory scheme laid out by the Election Law. Finally the chief justice noted that if the time limit stipulated by the Election Petition could be by-passed it would mean it was not mandatory, which would in turn undermine the principle of the Elections Law to clarify election questions expeditiously.

He gave his summary after presenting a full and complex reflection of both the arguments presented in the case by the legal teams and used a considerable amount of authority and legal argument to justify his ruling to strike out the petition.

Smellie rejected the plaintiffs’ arguments, as set out by Gerard Clarke, that the Election Petition was not appropriate because the matter was a question of qualification, that the Constitution overrides the Election Law or that, because the AGcould bring a challenge outside the Election Petition, so could the voters or candidates.

He said the Election Petition was designed to deal with all questions surrounding elections and that the use of the term “unduly elected” in the Election Law did not rule out questions of qualification. He noted that the reason why the AG was allowed to challenge outside those rules was because that was bestowed upon him by his office. Smellie noted too that the Constitution was not overridden by the Elections Law but had directly prescribed the provision of the Elections Law to be the method of challenge.

Throughout his ruling, the chief justice indicated a number of times that this issue of time was very important as it was in the public interest that any question over an elected member’s qualification or right to be elected had to be resolved quickly.

His position was particularly ironic given that the challenge against Scotland and Seymour, the two United Democratic Party candidates, was based on the fact that they had both gazetted their business interests in government contracts late under the provision set out under Section 19 (1)g of the constitution.

Seymour, whose firm has a contract with Cayman Airways, and Scotland, whose company has various contracts with government departments, did not gazette these interests until several days after the deadline indicated in the Constitution. Both said at the time that it was oversight on their part and not any intention to deceive voters as both their interests were already widely known.

The challenge was eventually brought via the originating summons by five voters and Sandra Catron, another Bodden Town candidate in the 20 May General Election. After Smellie’s decision Gordon Solomon, one of the five voters and the spokesperson for the plaintiffs, said  that he accepted the chief justice’s ruling and that as voters he and his fellow plaintiffs had taken the process as far as they could. If nothing else, he said, the whole process was an education for all voters and he did not regret the decision.

Scotland told CNS that he was pleased with the outcome but that from the beginning both he and Seymour had been advised that they were on the right path by asking to strike out the summons. He said that from the very start he was confident that he was secure in his position as a validly elected member and that from the day after the election, as far as he was concerned, he had been getting down to the business of government. Not in court for the ruling, Scotland said he and his government colleagues had been in meetings discussing the 2009/10 budget.

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Mac: Brac must change

(CNS): Announcing that there will be a forum on Cayman Brac at the end of August to discuss the economic future of the island, Leader of Government Business McKeeva Bush told Brac residents this weekend that he supported the concept of a marina on the Brac and also thought there was the possibility for cruise tourism to come to the island. Speaking at the official opening of the Alexander Hotel, he said he recognized that Brackers “don’t particularly want change”, but that there were some things they would have to accept to move the economy forward.

He said, “To those who say we want everything but don’t want anything to change … you can’t have your cake and eat it too. There must be changes and that’s what’s going to happen if businesses are going to survive.” The LoGB also promised he would cut the red tape for local businesses and hoped that Brackers would embrace the government’s National Development Plan, which would include the Sister Islands.

At a large gathering at the hotel to celebrate the opening of the Brac’s newest, and currently the only, resort, built and owned by Cleveland Dilbert, Bush noted that tourism was a major source of income for the island and the opening of the Alexander played a major role in the island’s recovery from Hurricane Paloma (which severely damaged the island last November). The LoGB said that the Brac Reef Beach Resort was “not far behind”, adding much needed tourism accommodation. (Right: a cake replica of the resort)

Noting some of the Brac’s attractions – diving, birding and also the island’s unique artificial dive site, the Lost City of Atlantis —  he said that Cayman Brac always attracted a special type of visitor, one that is interested in nature, adventure and relaxation. “While we want to see Cayman Brac develop, because that is what it takes, we want to keep what you have,” he said, and promised on behalf of the government that they would help restore tourism to the island through international marketing. He further encouraged local Cayman Islands residents to consider a “staycation” to the Brac and local businesses to consider holding smaller meetings at the Alexander instead of travelling to the US.

“As a country we need to do all we can to encourage and support local investors like Cleveland who dare to put their money into projects like the Alexander,” Bush said, noting that the government would not add tax to businesses that would discourage investors. “For us as Caymanians, we must be understanding of what investors need to operate and create an environment that makes investment feel wanted. This means a better immigration policy and a cutting of red tape which undermines businesses.”

Addressing business owners on the Brac, he said, “It is much more difficult to be profitable on this little island but over years you have withstood many storms and shown entrepreneurial spirit.” Having discussed the situation on the Brac with the Minister for District Administration, Juliana O’Connor-Connolly, he said they had decided to hold a forum towards end of August “to listen to concerns and get ideas that you may have to address the environment businesses must operate in here in the Sister Islands.” (Left: Owner of the Alexander Hotel, Cleveland Dilbert)

“There are things I would like to see done,” he said. “I recognize that Brackers don’t particularly want change but there are some things you will have to accept to move forward.” Bush said he believed it was time for a proper yacht facility and marina in the Sister Islands and hoped the two MLAs for the district would support the idea. “Many governments over the years have talked about it but been afraid to touch environment.”

Referring to West End Cemetery Pier, known locally as Scott’s Dock, Bush said, “I asked my friend Dervin (Scott) how far he was going with his dock, and he said he was going to go all the way to Cuba. I believe that holds out the possibility for cruise tourism.”

He said government would work with Scott, entrepreneurs like Dilbert and other investors to ensure that businesses on the Brac succeed, and said change was necessary for businesses to survive. “Business is not going to come by itself. Whilewe are pleased with the sleepy little island of Cayman Brac, we are going to move forward,” he said.

Government is in the process of drafting a National Development Plan that would include the problems of waste water and refuse collection, Bush said and hoped that Cayman Brackers would embrace this initiative. “You can’t be successful unless you plan properly,” he said.

The opening of the Alexander Hotel was attended by all UDP ministers and the event was emceed by MLA Moses Kirkconnell.

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