Bermuda's old capital will stick to a Big Mac ban -- even after a judge ruled outlawing foreign fast food franchises was against the Constitution.

And the Corporation of Hamilton is likely to fight any planning application to open a McDonald's within the city.

The Corporation of St. George earlier this year passed an ordinance banning franchises like McDonald's from within the city's boundaries.

Puisne Judge Vincent Meerabux last week backed a bid by ex-Premier Sir John Swan's Grape Bay Ltd to operate a McDonald's in Bermuda, ruling that the Prohibited Restaurants Act 1997 was illegal under the Constitution and not in the public interest -- although an appeal against the decision is set to be laid before the Court of Appeal by Attorney General Elliott Mottley.

But yesterday defiant Deputy Mayor Lois Perinchief -- set to become Mayor next month following the retirement of Henry Hayward -- said the decision would stand.

Ms Perinchief said: "If Sir John wants to open a McDonald's anywhere else that's his business -- but not in St. George's. "McDonald's has a very modern look and way of doing things and St. George's is not that way.'' And Corporation of Hamilton Secretary Roger Sherratt said former Mayor William Boyle had appeared before a special Cabinet Committee on the fast food franchise issue.

Mr. Sherratt added: "The Corporation had some serious concerns about having a McDonald's here, particularly on busy streets in the city centre.'' He explained that the Corporation's view was that a McDonald's -- or any other fast food business -- should have its own off-street parking, effectively ruling out the city as a host.

Mr. Sherratt said: "There were no places in the city where that could be achieved. There is nothing to actually stop one opening -- but obviously the Corporation can always object to planning applications.

"The Corporation would certainly express very strong objections if it was obvious there would be parking problems.'' The news came as it was revealed that Attorney General Elliott Mottley will argue in open court for a stay on Mr. Justice Meerabux's decision to allow a McDonald's to open its doors in Bermuda.

After a short private hearing yesterday, Mr. Mottley and Mark Diel, lawyer for Sir John Swan's Grape Bay Ltd, both agreed to a public hearing.

Mr. Mottley said yesterday: "We agreed it should be open and the stay will be argued on Tuesday. Mr. Diel will also make his case for costs.'' Grape Bay's counsel Mr. Diel said: "In fairness, all sides recognised that, given that the judgement was reported, it was only appropriate a stay be argued in open court.

"There was no application for it to go into open court. It was accepted by everyone it should be argued in open court. The costs application will probably be dealt with after that.'' And Mr. Diel took aim at some broadcast reports which attributed sinister motives to the original decision to hear the application for a stay in private.

He said: "There were allegations that the Attorney General had something to hide, which simply isn't true.'' The application for a stay on implementation of Mr. Justice Meerabux's decision is a prelude to further action by the Attorney General in the Court of Appeal.

A stay means that the status quo -- a block on the establishment of any foreign fast food franchises on the Island -- is preserved until Court of Appeal proceedings are concluded.

But -- irrespective of whether the Court of Appeal upholds or quashes Mr.

Justice Meerabux's decision -- the matter is likely to end up in Bermuda's final court of appeal, the Privy Council in London.

Mr. Meerabux ruled that Grape Bay Ltd's contracts with McDonald's were property under the Constitution -- which guarantees property rights.

He added that the Act amounted to "constructive deprivation'' of property and that it was illegal.

Mr. Justice Meerabux added that he could not find that the Act was in the public interest, one of the qualifications of Constitutional rights.

And he said: "I think that it is simply a matter of obeying the Constitution and no-one, not even the Legislature, can disobey the Constitution.'' Editorial: Page 4