A two-day judicial review wrapped up Thursday, with government’s attorneys urging Justice Tim Owen not to side with petitioners who are calling for the current referendum law to be declared incompatible with the Cayman Islands Constitution.
Mark Shaw, QC, representing the government, said the plaintiff, Cruise Port Referendum Cayman’s Shirley Roulstone, is calling for the Referendum Law, passed by the Legislative Assembly last month, to be struck down because it does not meet “an idealistic standard”. He said this request falls outside the remit of the court.
“The court must be careful not to step on the toes of the legislature, by implying characteristics it considers desirable in a law, that the legislature might not find desirable,” said Shaw.
His statements came in the morning of day two of the judicial review of the Referendum Law.
Shaw said that since December, when the review was filed, several grounds in the submission have either been addressed or are not a matter for the court.
“This hearing is not about whether the port referendum will be held, nor is it about the merits or demerits of the port project. This is no longer about the question to be asked in the referendum,” Shaw said. “The battlefield has tremendously decreased.”
At the heart of the judicial review is a discussion on how Section 70 of the Constitution ought to be interpreted, and whether it calls for one law to govern all referendums or a new law for each referendum, or both.
The specific section being discussed reads, in part, “a law enacted by the Legislature shall make provision to hold a referendum amongst persons registered as electors”.
On Wednesday, Roulstone’s attorney Chris Buttler argued that the current referendum law, which is specific to the cruise port referendum, lacks several safeguards outlined by Section 70 of the Constitution.
Buttler claimed that those failings have impacted each voter’s inherent right to a free and fair vote. Buttler further argued that government should not be allowed to set the rules surrounding the referendum process, because it has an interest in the outcome of the referendum.
Ultimately, Buttler is calling for a general referendum law or a framework to be put in place which would govern how each future referendum is to be conducted.
In his response to Buttler’s arguments, Shaw stated that Section 70 of the Constitution was not meant to be construed in a light that calls for a single general referendum law.
“Your task is not to strike down the Referendum Law because it doesn’t meet some idealistic standard,” said Shaw. “Rather, it is a matter of whether it fulfils Section 70 of the Constitution.”
Shaw told Justice Owen that Section 70 was unclear on whether there was to be one law or multiple laws regarding referendums. Shaw said the government’s position is that Section 70 calls for both a general law or framework and a specific law for each referendum. He encouraged the judge not to strike down the current law.
Justice Owen made it clear that his focus was on the current law and that he had no intentions of straying beyond that.
“Whatever judgment I pass, it will not require the government to draft a general referendum law or a specific referendum law,” said Owen. “The task of this court is to take a look at whether the current Referendum Law is compatible with Section 70 of the Constitution.”
Shaw then turned his attention to claims of unfairness on the part of government and to calls for a law that set out requirements on referendum campaigning expenditure.
“The call for government to provide and promote neutral information during the referendum process is not a requirement of the law, nor are limitations on campaigning expenditure,” Shaw said.
He pointed to the UK, where multiple referendums have been held, none of which, he said, had such requirements. Shaw stated that the terms of each referendum law varies from jurisdiction to jurisdiction and are policy matters which should be left for the government to decide.
Shaw then addressed the claims of voter disenfranchisement.
The plaintiff has argued that by setting out conditions on who is qualified to vote, as well as cut-off times for potential registration to vote in the referendum, some voters would be inadvertently disenfranchised. Shaw disagreed, stating that the nature of any policy is that some people would be affected. However, he said, there was no voter disenfranchisement.
“If you are not registered prior to the first of the quarter, you have not been disenfranchised because your right to vote hadn’t arisen,” he said.
In closing, Justice Owen said he would try to deliver his verdict sometime during the week of 10 Feb.