Election challenge struck out

| 03/08/2009

(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 AG could 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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  1. Anonymous says:

    "I strongly suggest that the CJ and AG take this matter very serious.  We the Caymanian people will not be sitting back any longer."

    Yes you will. 

    I don’t mean disrespect, but nothing changes around here.  Unles you are a multi-million dollar hedge fund or a VERY wealtghy individual, there is simply no justice here.  Nobody does anything to change anything, andf it’s always more of the same.

  2. Anonymous says:

    Can someone please confirm when Samuel Bulgin will be retiring, resigning or resting?

    I would like to know because he is not doing a good job and we need a AG that will.

    • Anonymous says:

      Goodness me!

      Some of these posts about the AG and the CJ are "scandalising the courts" are they not? (Not that I’ve met anyone who could tell me what this means or what other country has it-it sounds like a Jamaican expression to me.)

  3. Durrrr says:

    I expect that this will be the end of this sorry story, but if the AG refuses to take any action, perhaps a Judicial Review application could be brought to determine why he refused to do so?

  4. Anonymous says:

    Speak Samuel Bulgin……it is your constitutional duty to ensure that every sitting member of the LA is qualified to be in that Chamber.

  5. Anonymous says:

    I just don’t understand our Country (this Cayman Islands)

    Some countries would have already blocked a few road off and burn down a few buildings when things like this happen.  We Cayman people are too soft and can be pushed around day and night.

    I strongly suggest that the CJ and AG take this matter very serious.  We the Caymanian people will not be sitting back any longer.

    Cayman we need to stand up like other Countries and do whatever it takes to make our voices be heard. 

    This is WRONG….

  6. Anonymous says:

     Election challenge struck out because it was filled late? Would’nt that struck Mark and John out also for filing their government contracts late? I guess NOT!!!!!! WE can ALWAYS IGNORE the Constitution!!!!

    Why have a Constitution when no one respect it? I wish the Cayman Islands would stand up for the Constitution like our families and friends in Honduras did. NO ONE is above the LAW NO ONE………………… Only in the Cayman Islands…………………….


  7. noname says:

    Mr. Attorney General now take up the invitation of the Chief Justice to uphold the Cayman Islands Constitution.

    Mr. Attorney General if you do not take up the Chief Justice’s invitation to defend the Cayman Islands Constitution then we have no respect for you and you have failed in your reason to be in the Cayman Islands to uphold Law and the Constitution.

    To not take up this matter would be a sad conclusion to make the Cayman Islands Constitution having virtually no purpose, when the powerfull decide when to comply and when not to comply.

  8. Anonymous says:

    It’s time to move on and stop squabbling over petty little matters like this.

    Cayman already gets enough bad press around the world for being a tax haven full of bad evil bankers etc etc. Recently they have been getting further bad press about the infighting of judges, police, government etc and it makes the whole country look like a shambles.

    With fund companies and banks already abandoning the island in their droves and taking their business to other offshore jurisdictions because of the outdated immigration laws and over the top bureaucracy to hinder the growth and development of their businesses in Cayman, we simply cannot afford to keep wasting time, money and government resources on these pathetic issues. The election is over, the people chose who they wanted to represent them so let’s just let it go.

    The current government need to focus their energy on digging us out of the hole the government (all previous administrations) have put the country in through years of corruption, mis-management of resources, racism and incompetence.

  9. Anonymous says:

    Its time to move on people; the country needs all the attention it can get from its elected representatives, as has been said over an over again; the good people of Bodden new and understood the situation before hand and they still voted for Mark and John. The situation has been challenged and it has failed, I say its time to let it go.

    We have a lot more serious promblems than this….

  10. Anonymous says:

    If this challenge had been filed on time it would have clearly succeeded and Mark and John John knew this which is why they both admitted that they were "concerned about the matter and how it would end". The only limb that Mark and John had to cling to was, ironically, to argue that the challenge was filed late……the filing late of their own interests in government contracts is the very reason why they are disqualified !!!

    So we are now down to this single point…..and that is that these two men are clearly disqualified from holding office as MLAs but that the Grand Court struct out the challenge on the basis that it was filed late but VERY IMPORTANTLY noted that ONLY the AG can bring the challenge after the 21 days have passed. So Mr. AG pray tell what is your excuse now for not upholding our Constitution ?? ……the Hon. CJ has given you another chance to get this right…..I strongly suggest that you take it !!!

  11. Anonymous says:

    Well it comes as no surprise that no one in this country with the power to do so, has the courage to defend the Constitution and do what is right.  The problem with Cayman is that the people who have the power to do what is right do not care enough about this Country to look any further ahead than their own self gain rather than the good of the country.  To all of the voters who vote based on what certain politicians can do for them, you are selling out your country for a fridge, washing machine or a load of fill.  Stop complaining about the corruption on this Island because you are contributing towards it.   For the many people who do not understand or choose not to understand the real issues here, this is not about parties or personaliities.  This is about having people run this country who have integrity, are honest and do the right thing even when its unpopular and makes things uncomrtable.  This is what makes them trustworthy, honest and dependable and worthy of respect.  Things can only get worse here until we choose to put God first in our lives, do what is right even when its not popular and not treating the laws as though they apply to everyone else but ourselves.   

    Wake up Cayman, your Constitution has been breached, the highest law in the land, and this landmark decision confirms what many of us have been afraid of:  you can do whatever you want because no one cares enough to do what we all know is the right thing to do.  May God Bless us all and have mercy on us.. 



  12. Anonymous says:


    So, is the AG independent and representing the people, upholding the laws and constitution of our Beloved Isles, or caving in to his overlords?  

    Time will tell (as it is longer than rope)…
  13. Twyla M Vargas says:


    After listening carefully to the evidence I am satisfied that It was the correct decision made by the Judge according to the evidence put before him.  Judge Smellie is a fair person, so it surprised me none, that he would rule according to what was put before him.   However, there  are  a few frills at the hem of this petty – coat, which can either be hemed up  by AG or simply cut off…………

    My concern however is this, How many representatives will we have working towards a better Bodden Town.   One, two or three?  It is not the first time we have had representation of this sort, where by we were representated by two separated parties and, what did we get  done? "Nothing"    A string of promises.   While two would work together the other would not give a darn about helping, just sulk, never said a word , and collected a fat salary every month.  If this is going to happen again  I say "We need a bye-election".  

    To Mark and John, I say follow the wise old owls of this district who can give you the right advice.  Be careful, Dont let a handful of intimidating friends lead you in the wrong direction.  because 4 years is not as long as you may think.     Walk good.

  14. Anonymous says:

    "Not in court for the ruling Scotland said he and his government colleagues had been in meetings discussing the 2009/10 budget." I guess if you already got a heads-up and know the outcome, there is no reason for you to show up to court? From us few remaining honest Caymanians, Thanks to Mr. Solomon et al for your attempts to take this issue as far as you could go.

  15. not a ppm supporter says:

    Success in flouting the provisions of the Constitution based on legal technicalities is hardly something to rejoice over and it is certainly not the overall message that we want conveyed in our society. Nonetheless it is necessary for the courts to uphold the strict letter of the law even if politicians feel no such obligation.

    Hopefully the full decision will be published in the near future as the legal rational applied in coming to it, including the unique standing outside of the Elections Law attributed to the office of the AG but not other persons, is not at all clear in the initial media explanations – no offense intended to any of those who have provided preliminary reports. 

    I saw Mr. Solomon – always a gentleman – on television a short while ago and I gather from his comments that there will be no appeal. Given the costs involved that is entirely understandable. I would like to say to Mr. Solomon that what he and his associates did was courageous and absolutely the right thing to do. I applaud each of them. I do not intend to hold my breath while awaiting the AG to do anything. 

  16. Knal N. Domp says:

    OK, its cojone time, Mr Attorney General. Do you stand by your statement that you are not qualified to pursue this matter further in terms of 23(3)(a)(iv) or 23(3)(c) of the Constitution, or are you giving it all some thought second time around? Oh, okay, maybe not…

  17. Fed-UP CAYMANIAN says:

    For once justice has prevailed and prevailed in the highest court of the land.h