Justice Tim Owen on Wednesday ruled in favour of Cruise Port Referendum Cayman’s Shirley Roulstone and the National Trust in a judicial review of government’s planned referendum on the proposed $200 million cruise berthing and port facility.
Delivering his judgment via videolink, the judge ruled that the Referendum Law, which was passed in October 2019 and which was specifically tailored for the port referendum, was incompatible with section 70 of the Constitution. He ruled that the Constitution requires a general law that governs all referendums.
“For reasons of legality and on the basis that such a law will best guarantee the constitutional right to a fair and effective vote in a people-initiated, binding referendum, I find that the Referendum Law 2019 is incompatible with section 70 of the Constitution because it fails to satisfy the requirement for a general law governing all [section 70] referendums and is itself not in accordance with such a law,” Owen wrote in his ruling.
He added that he would hear further arguments on the “appropriate relief” – in other words, how the situation can be remedied.
Premier Alden McLaughlin said government intended to appeal the decision.
In a brief statement issued after the ruling was delivered, the premier said, “Understandably, the ruling of Acting Judge Tim Owen QC of Matrix Chambers handed down this morning is not the outcome that the Government had hoped for.
“While the Court determined that the Referendum Law was incompatible with section 70 of the Constitution, the question of the appropriate relief to be granted is still outstanding. We understand that it will take some time before an order on this issue is made.”
He added, “Pending the Court’s final order, aside from the immediate issue of an appeal, the Government will take time to consider its next steps regarding the port project, and will issue another statement in due course.”
Justice Owen, in his ruling, said it was “unfortunate” that no government had addressed the need for a general referendum law, despite recommendations made by the Constitutional Committee in 2011 and 2014. “Had this matter been addressed earlier, the uncertainty and, ultimately, as I have found, the incompatibility of the Referendum Law 2019 with the Constitution might well have been avoided,” he said.
The judicial review challenged the law on the grounds that it was unfair, because it failed to address critical issues that would guarantee the protection of a citizen’s right to vote.
Chris Buttler, who represents Roulstone, argued that without a general referendum law, there was an absence of provisions for voters’ registration; an absence of rules for campaign financing; a lack of clear rules on party political broadcasting; an absence of general rules on the formulation of the referendum issue, such as confirming it is an issue of national importance; and an absence of rules on providing objective information.
Mark Shaw, QC, who led government’s legal team, argued that the law was fair, and that the aim of the judicial review was not to argue about the merits or demerits of the law. He argued that section 70 of the Constitution could be construed as calling for either a general law or framework to govern all referendums, or a specific law for each referendum, or both.
Ultimately, Owen interpreted the law to mean there was a need for a general law/framework to govern all referendums. Although the justice declared the Referendum Law 2019 incompatible with the Constitution, he did not strike it down, nor did he make any orders on how government should proceed, in light of his ruling.
For Roulstone, the National Trust and CPR, Owen’s ruling affirmed their calls for a fair process that protects voter rights.
“This is what happens when a little group of people get together and do wonderful things,” said Roulstone, speaking outside court following the ruling. “This win is on behalf of all of the people of the Cayman Islands, and it should be [a] warning to the government that they are on notice to do things the right way or they will have us on their backs.”
The ruling will inevitably cause a further delay to the referendum process, which Roulstone said she welcomed.
“We were never in a rush to have a referendum,” she said, “We wanted a fair, just referendum for our people.”
A small costs application was made by the National Trust immediately after the judgment.
National Trust vice chairman Peter Davey said, “Needless to say, we’ve very pleased with the outcome and we hope that this dock – if it ever does happen – is built in the right way.”
In a later statement, the National Trust said it welcomed the government’s confirmation that there will be a general referendum law “setting out clear and fair rules for referendums”, adding, “We invite the Cayman Islands Government to engage with all stakeholders – including CPR and the National Trust – when framing the general referendum law so that it is seen to be fit for purpose.”
Government already had amended the question it planned to use for the referendum.
However, CPR Cayman representatives said the new wording still fell short of addressing concerns raised in the judicial review. Following the court’s decision, Leader of the
Opposition Arden McLean in a statement called on the government to consider abandoning the cruise berthing project and “to get on with other initiatives which are needed in the country”.
Citing the widespread opposition to the project, “the potential for destroying natural resources and the government’s failure to justify their business case for the piers”, McLean questioned the government’s motivation for taking the process to this point.
“It is time the government abandon this mission to nowhere. The people have spoken and now the courts have found the government’s attempts to manipulate the referendum process unconstitutional. This is serious and the government needs to reflect on what message they are sending to the people they claim to represent.”
Meanwhile, North Side MLA Ezzard Miller called on government to expedite its efforts to create a general referendum law.
“What I would hope is that the government would take heed and they would get busy and do a proper referendum law with wide consultation,” Miller told the Cayman Compass.
“I would like to see that brought to parliament before the end of March,” he added.
He said he hoped Wednesday’s ruling would serve as a message to government.
“We have to trust the people, and one of the things that is not happening enough in this country is allowing the people to participate. They should not have to go to court to get these kinds of judicial reviews,” Miller said.
What happens next?
The status of the people-initiated referendum is unclear for now. The referendum cannot take place until a new or amended law is in place or the government’s appeal is settled.
This means there is no way to tell when voters will get a chance to cast their ballots on the proposed project.
During the judicial review hearing, government’s legal team said the government had committed to passing a general referendum law to govern all referendums in the second half of 2020.
CPR says until a decision is made, it will ramp up efforts to get voters to register.
“We want people to get registered to vote, that is the most important thing right now,” said Roulstone. “Every Caymanian that is 18 years old must get registered to vote. This is a part of history that you want to be a part of, and you don’t want this to pass you by.”
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