Attorneys challenging the vote on the cruise berthing and cargo project have said local legislators breached their duty by failing to enact a general framework for holding referendums.
It was a point attorney Chris Buttler, of Matrix Chambers, raised Wednesday as the judicial review case filed by Cruise Port Referendum Cayman member Shirley Roulstone began in Grand Court.
Roulstone’s case, which was filed against Cabinet and the Legislative Assembly, challenges the referendum law that was passed last year specifically to pave the way for holding a vote on government’s $200 million cruise berthing and cargo project.
Buttler, representing Roulstone, argued that the port referendum law was “unlawful” as it failed to address critical issues that would guarantee the protection of a citizen’s right to vote.
Referring to the Court of Appeal’s ruling in the Chantelle Day/Vickie Bodden Bush marriage case, Buttler argued that a similar principle of unlawfulness created by the absence of a legislative framework for same-sex marriage also applied in Roulstone’s case.
He said there is a need for a “stable framework rather than one that changes” every time a referendum is held.
This was not the case when the process for the people-initiated referendum on the port project was triggered, he said.
Without proper official guidelines, it was left to the Elections Office to determine the verification process of referendum petition signatures, one that CPR objected to. It also allowed government to determine the date and the question of the referendum before a law was implemented.
“A general law would help protect the right to an effective vote,” Buttler contended as he outlined his case before Justice Tim Owen and a packed courtroom.
Owen pointed out that government, through its attorneys led by Mark Shaw, QC, has indicated that a general referendum law will be introduced in the second half of this year.
Buttler argued that having such a general referendum law would have addressed the problems raised in the judicial review and, therefore, Roulstone’s team is seeking an order quashing the port referendum law as it is.
The problems the absence of a general law caused, he pointed out, include: the absence of provisions for voter registration; the absence of rules for campaign financing; a lack of clear rules on party political broadcasting; the absence of general rules on the formulation of the referendum issue, i.e., confirming it is an issue of national importance; and the absence of rules on providing objective information.
Prior to commencing the case, Justice Owen sought to clarify what matters were left before him as he noted that government had undertaken concessions that related to the initial case submitted by Roulstone’s legal team.
Those concessions include amending the referendum question, which was done late last month; government’s declaration in its arguments that it has a duty to protect the environment in its decisions; and the submission of an environmental impact assessment scoping update on the project.
Government, he pointed out, has paid Roulstone’s legal fees relating to the concessions on the wording of the referendum question.
Buttler said government had issued a statement on the scoping update, but his team was yet to see the document and what it entails. The update was issued on Tuesday afternoon, the day before the judicial review began.
A citizen’s inherent right to a free and fair vote, he argued, was impacted by the lack of set guidelines for the verification process of the CPR petition, an absence of rules for execution of the vote, and no clear provisions on how the process should be followed as it relates to who is eligible to vote in the referendum.
The National Trust, which has joined Roulstone’s judicial review as an interested party, offered to provide submarine tours of the reefs to be impacted by the project and also suggested a site visit.
However, Owen said he did not see the need for that since the government had committed to its duty to protect the environment.
Buttler said further to the absence of a framework that governs how referendums are to be held, government also has the ability to set the terms and conditions of the referendum; which could skew the outcome of the results of the referendum in favor of the government.
“What are the rules of the game?” asked Buttler. “Can you change them [the rules] referendum by referendum? Government are players in the game and therefore they should not be allowed to set the rules of the game.”
He added that government had mixed the issues that are currently being addressed, “that is, the issue of the refurbishment of the cargo facility, which the petitioners support, and that of the construction of the cruise berthing facilities, which could skew the results”.
Buttler said the current referendum law does not address who should be allowed to decide what issues are of national importance.
He also raised what he called “one-sided, partisan misinformation” that was presented by the government using public funds.
“Our issue isn’t that government should not be allowed to present whatever information it wishes to,” said Buttler. “Rather we say both sides should be allowed to present their information, but there needs to be an independent party that also presents objective information.”
The need for an independent body capable of presenting balanced and objective information was also stressed by Tom Lowe, representing the National Trust.
“This is a fairly small jurisdiction, and therefore it lacks resources and bodies needed to facilitate discussions,” said Lowe.
He added that, unlike in England and Wales, Cayman does not have a body that is capable of commissioning an independent inquiry into projects of national importance.
“There is the NCC (National Conservation Council) but it does not have the ability to commission its own independent study into projects of national importance,” said Lowe. “The NCC does not have any ability to call in an inquiry or force the government to accept its findings.”
Lowe acknowledged that the current judicial review was not to consider the legality of government to draft the law, nor was it a review to address the legality of government’s ability to disseminate information, nor was it the correct forum to address environmental concerns. However, he noted they were concerned about the “misleading statements” about the impact of the project would have on the port, and the fact that “the government is able to project the information with the full might of the civil service and government departments”.
The government is expected to give its response on Thursday at 10am.
Roulstone’s legal team: Chris Buttler of Matrix Chambers, Kate McClymont and Richard Parrish of Broadhurst LLC.
Government’s legal team: Mark Shaw, QC, Jessica Boyd and Michael Smith.
National Trust’s legal team: Tom Lowe, Nicholas Dixey and Colm Flanagan of Nelson and Co.
Additional reporting by Andrel Harris.