An anti-burger franchise MP yesterday got a roasting from lawyers for Sir John Swan's Grape Bay Ltd., whose bid to open a McDonald's has rocked Bermuda.

Mr. Moniz said in yesterday'e edition of The Royal Gazette that a ruling by Puisne Judge Vincent Meerabux did not strike down the controversial Prohibited Restaurants Act by declaring it was unconstitutional.

But yesterday Mark Diel, who won the case for Grape Bay, said: "Our originating statements asked for the Act to be declared void -- that's what the judgement did.

"That means it doesn't apply to us or anyone else -- it doesn't exist any more.'' He added: "In order to avoid confusion as to either the validity of the Act of Grape Bay's activities subsequent to the decision, it is necessary to correct this misstatement of the judgement and its affect on the Act.

"The judgment quite clearly holds that the Act is unconstitutional and therefore void -- it follows that, contrary to Mr. Moniz' statement, the effect of the decision is in fact to strike down the Act.'' But yesterday an unrepentant Mr. Moniz -- himself a lawyer and one of Government's rebel five MPs who pushed through the Act with Opposition support -- was sticking to his guns.

He said: "I don't agree with what he is saying, For a start, the judgment from the judge is not binding on other judges or binding on the Court of Appeal.

"It's a declaratory judgment -- merely a declaration of the judge's interpretation of the law.

"It may be binding on inferior courts and binding on the parties -- but not on other courts.'' Mr. Moniz added: "If Mr. Diel is suggesting this strikes down the Act, in my view that's not a correct interpretation of the judgement.'' But Mr. Diel hit back: "He regards it, I presume as a defeat to have the Act struck off the books. He wants to at least salvage something by saying it's still there. The court has said it's not.'' Mr. Justice Meerabux ruled the Act was unconstitutional in Supreme Court last week.

On Tuesday, the same judge refused to grant a stay of execution to Attorney General Elliott Mottley pending an appeal to Supreme Court, likely to be held in March.

That decision removed the final barrier to the firm controlled by Sir John Swan and United Bermuda Party backbencher Maxwell Burgess to set up shop with McDonald's on the Island.

But it is not known whether Grape Bay will push ahead and open up a business with the risk that it might eventually be ruled illegal by one of the two further courts -- the Court of Appeal and the Privy Council in London -- which could deal with the matter.

In any case, whether McDonald's can open at the Airport -- the first choice site for Grape Bay -- is still up in the air.

Government has already granted a concession to the firm, but the lease stil has to be approved by the House of Assembly.

And if the Progressive Labour Party again combines with UBP members, that would be enough to deny the firm an Airport spot.