By Tad Stoner
tad@caymannetnews.com

The election challenge to United Democratic Party (UDP) Bodden Town MLAs Mark Scotland and Dwayne Seymour may turn on a court judgement about how to bring a lawsuit based on the Cayman Islands Constitution.

So little constitutional case law exists in the Caribbean region, said UDP Co-Chair and attorney Sherri Bodden-Cowan, that a court challenge based on a governing document may rely on procedures prescribed in subsidiary legislation. As such, the six-plaintiff challenge to Mr Scotland and Mr Seymour, brought under the 1972 Constitution, may depend on the Elections Law.

Explaining the UDP’s response to 16 June Grand Court election challenge, Ms Bodden-Cowan, who notarised both the three-page affidavits and one-page exhibits submitted by the candidates, said the Constitution only created principles, but did not say how they could be enforced.

“It’s a question of whether what we filed deals with substantive issues,” she said. “This does not deal with the substantive issues in the originating summons. This deals with preliminary points.”

The original 16 June writ -- filed by Samson & McGrath on behalf of Bodden Town independent political candidate Sandra Catron and fellow plaintiffs Gordon Solomon, Ronald Ebanks, Jean Ebanks, Roxanne Basham-Ebanks and Michael McLaughlin -- cited violations of Section 19 of the Cayman Islands Constitution.

The document advises that all candidates must publish a “government notice” of their interests in any government contracts at least one month before the election.

Any district candidate, voter or the Attorney General may challenge the election of a candidate who misses the deadline. Both Mr Scotland and Mr Seymour have acknowledged their oversight in missing the 20 April deadline for 20 May national polls, in which they finished first and third respectively. Both, however, published the required notices in a 24 April extraordinary edition of the Cayman Islands Gazette.

The constitution cites no time limit for bringing a challenge, but in their 29 June response to the originating summons, the pair cited the 2004 Elections Law, which stipulates a 21-day post-election period for contesting a candidate’s poll success. Pointing out the expiration of the three weeks, the two have asked the court to dismiss the original writ.

Explaining the apparent discrepancy between the 16 June constitutional challenge and the 29 June Elections Law response, Ms Bodden-Cowan said the 21-day issue was a preliminary hurdle the candidates hoped would discourage further action.

“We are taking the point that it should have been filed within 21 days. We are asking if their procedure were correct. We thought it should come under the Elections Law,” she said.

The constitution, Ms Bodden-Cowan said, did not prescribe procedure. “It gives you the power to create legislation and to set out procedure,” but does not include those elements itself.

The Elections Law, however, is the legislation that creates the procedures for bringing suit.

“This has to be agreed first and we get that out of the way,” she said. “Then the other side files affidavits supporting their original”, followed by responses from the defendants.

“The time has not yet come for the substantive issues,” she explained, while Mr Scotland and Mr Seymour have asked the court to dismiss the suit immediately and award costs.

“We have to challenge the whole process,” Ms Bodden-Cowan said.