Election challenge in court

Attorneys for Mark Scotland and Dwayne Seymour appeared in Grand Court on Friday arguing that a challenge to the election of the two Bodden Towners in May should be brought to an end by having it struck out.

The hearing was not concerned with the reasons for the challenge or the correctness of any allegations. It was about the process chosen by the challengers to state their claim.

Chief Justice Anthony Smellie said he was hearing the matter in open court instead of his chambers ‘because of the obvious public interest.’

When legal arguments ended, Mr. Smellie said he would take time to consider the matter. No date for his ruling was mentioned.

Members of the public attended the proceedings throughout the day, with almost 40 people – many of them Bodden Town residents – present at one point. Several Cabinet ministers and Members of the Legislative Assembly also attended portions of the proceedings, including Leader of Government Business McKeeva Bush.

Messrs. Scotland and Seymour sat with their attorneys in the well of the court. Challengers, including Gordon Solomon, sat in the gallery.

Lord Pannick QC said the case for Messrs. Scotland and Seymour was very simple – a claim challenging the validity of their election may only be brought by way of an election petition and that must be done within 21 days of the announcement of election results.

But the challengers had not filed a petition, Lord Pannick related. Instead, they had brought an originating summons 26 days after results were announced.

The summons asked the court to decide if Messrs. Scotland and Seymour were disqualified from being elected as a member of the legislative Assembly.

The question was based on section 19 (1) g of the Cayman Islands Constitution. It states that no person shall be qualified to be elected who is a party to any contract with government and has not had a notice published about the contract at least one month before the day of the poll.

Notices about the two men’s contracts with government or government-owned entities were published in the Extraordinary Gazette of 24 April. Elections were held 20 May.

Lord Pannick pointed out that section 23 of the Constitution states that any question of whether a person has been validly elected shall be determined by the Grand Court. It also states who may apply to the Grand Court for such determination, but does not state how the claim shall be brought.

That is dealt with in section 28, which provides that laws may be enacted to govern elections, including the determination of any question whether any person has been validly elected.

The Legislative Assembly exercised the power conferred on it by enacting the Elections Law. It states that a petition complaining of the undue election or undue return of a member of the Assembly may be presented to the Grand Court within 21 days (or 28 days if the allegation is of corruption). It also requires the deposit of a $3,000 security.

Lord Pannick said the time limit was important because there should be no doubt or uncertainty as to who is an MLA.

Further, Grand Court rules require the conspicuous display of an election petition because ‘it is not a private issue between defendant and petitioner. On the contrary, it raises issues of public interest,’ Lord Pannick pointed out.

He said the issue was whether the remedy provided by the Elections Law could be avoided by a person choosing in his own discretion to bring a claim by way of an originating summons, which was not subject to any of these controls.

Attorney Gerard Clarke responded on behalf of the challengers, saying their claim rests solely on the Constitution. He said it was a case about qualification for election, not election as such.

Qualification for election is regulated by the Constitution itself, Mr. Clarke noted.

‘That provision creates an absolute bar. That person simply cannot be elected… because he is not entitled to sit.’

He argued the Elections Law cannot be the exclusive code for deciding whether persons have been validly elected and that the Elections Law concerns the running of the race, not who is entitled to enter the race.

The Constitution also states that persons may apply to the Grand Court to determine whether an elected member of the Assembly has vacated his seat. This is not covered in the Elections Law; it would be dealt with under the Constitution, Mr. Clarke argued.

Mr. Clarke is instructed by Attorneys David McGrath and James Kennedy.

Lord Pannick appeared with Ramon Alberga QC, instructed by Attorneys Michael Alberga, Christopher McDuff and Steve McField.

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