Almost six months after beginning a campaign to force a referendum on the controversial cruise port project, volunteers are still collecting the signatures needed to trigger a public vote, though organizers have not stated how many people have signed the petition to date.
Members of the Cruise Port Referendum Campaign say they are closing in on the target of 5,288 signatures from registered voters. That total represents 25 percent of the electorate and is the threshold required to trigger a people-initiated referendum.
The group declined to give a precise figure for the amount of verified signatures it has collected. Speaking after a public meeting at South Sound last month, Mario Rankin, one of the leaders of the group, said the number was in the “high 4,000s.”
Katrina Jurn, of Cruise Port Referendum Cayman, told the Compass this week, “We are nearing our targeted goal and have commenced the internal verification process for registered voter signatures.
“We are confident that we will go beyond the target of 5,288, despite voter apathy in some quarters and the fear of political retribution within the workplace, particularly within the Civil Service.”
Civil servants are allowed to sign the petition, unless they are senior officials directly involved with the project.
Government presses forward
As campaigners work to gather signatures, government is pressing ahead with the procurement process.
The Major Projects Office, which is responsible for the project management of all government major capital projects above $10 million in value, is anticipating bids from three consortiums to design, build, finance and maintain the cruise facility and expanded cargo port. The final bids are due by the end of the first quarter of this year and a decision on the “preferred bidder” is expected later this year.
At that point, government says it will be in a position to tell people exactly how much the project is expected to cost and precisely how it will be funded – unanswered questions that have sparked criticism over perceived lack of transparency from officials.
Tourism Minister Moses Kirkconnell previously told the Compass that consultants PwC would then complete a final business case analysis on the project and the information would be presented to the public before Cabinet makes its final decision.
A separate deal has already been agreed with two major cruise lines, Carnival Corporation and Royal Caribbean, to help finance the construction of the facility. The details of that deal have not been disclosed.
Little room for maneuver
Despite those commitments, the Cayman Islands Constitution leaves little room for maneuver for government if the campaigners reach the required number of signatures. Suggestions that the wording in the document is vague enough to allow government to avoid a public vote if 25 percent of the electorate signs the petition were dismissed by legal experts and opposition politicians.
Andrew Woodcock, of Hampson and Company, said Sections 69 and 70 of the constitution (see sidebar), which deal with referendums, were unambiguous and he does not believe they would be open to legal challenge.
Mr. Woodcock, formerly a lecturer at the Truman Bodden Law School, said Section 69, which says government “may” call a referendum if the majority of legislators approve, referred only to government-initiated referendums and does not, in his view, conflict with the power of the people to force a referendum through Section 70 on matters of “national importance.”
“The effect of Section 70 is that, where a petition signed by 25 percent of the electorate is submitted to Cabinet, there is no discretion. A referendum must be called,” he said.
“It is for this reason that it is a highly democratic provision. This is particularly so in a smaller jurisdiction such as ours, where the number of signatures required is relatively small.”
Opposition leader Ezzard Miller said it would be impossible, politically and legally, for government to avoid a referendum if the campaigners reach the threshold.
“If they get the numbers and they are verified, they have to have a referendum,” he said. “Cabinet has to pass a law that states the question and sets the date.”
He said any attempt to avoid a referendum at that stage would be “political suicide.”
“I don’t think they have any wiggle room,” Mr. Miller said. “If you get 25 percent of the registered voters and they are authenticated, and they try that [to avoid a referendum], I will call for a general election.”
No time limit
The constitution does not set a time limit for the validity of signatures, so, in theory, the campaigners have an indefinite amount of time to collect the signatures.
Mr. Miller said he did not believe the presence of a signed and sealed contract would be enough to prevent a referendum, under the constitution.
He acknowledged that backing out of a contract, if a referendum went against the government, would likely mean incurring substantial financial penalties, but said this would be a point for the government to argue in the run up to a public vote rather than sufficient justification to stop it.
Mr. Woodcock said the Constitution does give government the power to set the question for a people-initiated referendum.
“As you would appreciate, the manner in which a question is phrased can have a very significant political impact. Therefore, the provision is not entirely democratically transparent,” he added.
He said there was potentially some room for argument over whether the issue at hand met the bar for a topic of “national importance.” There is no definition of this phrase in the constitution, meaning it could be open to interpretation.
“There is an argument to say that, whenever 25 percent of the registered voters … wish to have a matter dealt with at referendum, it must be deemed to be a question of national importance. That is, the mere fact of the interest of such a proportion of the population renders it a question of national importance. That, however, is my own view, and is not made clear by the Constitution,” he added.
If and when the campaigners collect the required number of signatures, the Constitution specifies that the petition must be presented to Cabinet.
The next step in the process is not spelled out in the document but it is likely that the Elections Office would be charged with verifying the signatures against the electoral roll. Once the petition is verified, Cabinet would be expected to go to the Legislative Assembly to pass a law, setting out the question for the referendum and the terms of the vote.
Wesley Howell, the current supervisor of elections, did not respond to multiple calls and emails requesting information for this article. He previously told the Compass that the Cabinet and Legislative Assembly direct the terms of a referendum and the Elections Office is then responsible for organizing it.
Two referendums have been held in Cayman in recent years – the first involving the modernization of constitution, in 2009, and the second on the “one man, one vote” issue, in 2012. Both were initiated by government.
For people-initiated referendums, the Constitution specifies that the result is binding on the government and the legislature “if assented to by more than 50 percent of persons registered as electors.”
That creates a high bar for the campaigners to reach. Simply carrying the majority of votes in the poll would not be sufficient as those that do not show up will effectively be counted as votes in support of the port project.
The turnout at the 2017 general election was 75 percent. If a similar turnout is seen at a referendum, that would mean 15,864 of the Cayman Islands’ 21,152 registered voters showing up to the polls to cast their vote.
In those circumstances, 10,577 (two thirds) of the votes would need to go against the port project for the result to be binding on the government.
The legislature has the power, if it initiates a referendum of its own accord, to lower that threshold to a simple majority of those that turn out to vote (7,933 in the above example).
Mr. Miller says this is one of the reasons he pushed government to call a referendum itself, during a marathon Legislative Assembly session on the Brac in September. At the time, government cited the time and cost of putting on a referendum as prohibitive and insisted it would delay the procurement process.
Nearly six months later and with no preferred bidder yet selected, Mr. Miller says he finds that argument less convincing than he did at the time.
“It takes six weeks from Nomination Day to organize a General Election,” he said. “If they had called a referendum in September when we brought our motion, they would have the result by now. If they were confident they had the support of the people, that is what they would have done.”