The absence of a proper referendum law in the Cayman Islands has been flagged as a major concern by all sides on the road to the port poll.
Historian Roy Bodden labelled the existing process an “adhocracy”, claiming government has made up the rules as it has gone along. The campaigners say they have been thwarted at every turn by new requirements and new obstacles.
Premier Alden McLaughlin refutes that argument but maintains that government does plan to push for a more general law once this vote is dealt with.
Read more: Referendums around the world
He argued that the absence of such a law has hurt government more than it has the protesters.
“There needs to be more certainty about the process for government as well as for people who wish to start petitions,” he told the Cayman Compass in a recent interview.
The premier also claimed the question of the port project may not have made it to the ballot box if there had been a referendum law in place. He said most laws in other jurisdictions put a limit of three to six months for petitioners to collect signatures calling for a poll.
“The irony is that had we a referendum law, this particular referendum would never have happened,” he said.
“They would not have been able to reach the 25% threshold in time.”
Those on the other side of the argument believe that with a clearer system for collecting and verifying votes, they would have hit their target sooner.
Other jurisdictions have a process for registering and verifying petition signatures on the internet, for example.
“It would have been much easier if we could have had an online petition,” Katrina Jurn of CPR Cayman said.
‘We need a proper law’
Other politicians and academics have also called for a referendum law.
Bodden said the campaigners were at a disadvantage because government had been able to make up the rules in the absence of a clear law.
Ezzard Miller, the veteran independent legislator, who is in the process of forming his own party on the principles of ‘participatory democracy’, said a referendum law was essential.
“We need a proper law. Then we wouldn’t be in this position we are in now where we don’t know how long people have to get signatures, how they are supposed to be verified or how the question is framed,” Miller said.
He acknowledged that a referendum law would likely pose a time limit for collection of signatures but suggested it should also make it easier for campaigners to carry out that process.
Miller said a simple petition with signatures accompanied by voter identification numbers should be sufficient and insisted the process of verifying signatures through a personal affidavit from all the petitioners was convoluted and unnecessary.
“This thing we went through here was ludicrous,” he said.
Constitutional amendments mooted
Miller acknowledged a referendum law would not be able to change the thresholds set in the Constitution requiring a majority of electors, rather than a simple majority of those who turn out to vote. And he believes a constitutional amendment could be necessary.
He said the framers of the Constitution had deliberately set the bar high to make it difficult to overturn the policy of a sitting government. But he believes a better method would be to require a higher threshold – around 60-66% – of those who turn out on the day to be reached before a vote is passed.
He said the current structure encouraged people not to participate and made it very difficult for people-initiated referendums to succeed.
McLaughlin, speaking to the Compass immediately following the publication of the bill for the cruise port referendum last month, indicated his government would work on a wider Referendum Bill in the new year.
He said it would cover everything from campaign-finance limits to how signatures are collected and verified and include time limits for every phase of the process.
“The plan is most definitely we will [bring a referendum law],” he said.
“We need to put in place a law to govern how these things work.”
‘This will not be a one-off’
Bodden told the Cayman Compass the law should have been passed a long time ago. More than two decades ago, he collaborated with former Progressives leader Kurt Tibbetts on a private member’s motion that called for a referendum law, which he said was passed by the House but never made it on to the statute books.
He said he had no problem with the bar being set at more than 50% of the electorate, agreeing that it should be deliberately difficult for people to overturn the policy of elected government.
But Bodden said the rules around the framing of the question and the verification of signatures, among others, needed to be clearly laid out in legislation.
“The challenge for the government coming out of this is to ensure we have a clearly established referendum law because more than likely this will not be a one-off,” he said.