Breaking down the referendum judgment

What the latest court decision means for the port vote

Campaigners celebrate with Shirley Roulstone, second from right, after the judge's decision Wednesday. - Photo: Taneos Ramsay

The ongoing saga over government’s plan to build new cruise berthing facilities in George Town took another twist on Wednesday following a judgment from the Grand Court. Justice Tim Owen ruled that government must put in place a general framework law setting out a fair process for how people-initiated referendums are handled before it sets the date and question for the poll. Here we break down his judgment and the repercussions for the port project.

What was the court case about?
In simple terms, the court action was taken by opponents of the cruise berthing project, in an effort to ensure that the referendum, whenever it takes place, is a free and fair vote. They argued that the way the vote was being planned and regulated in this case was stacking the odds in favour of government.

In what way?
The conditions for the vote, originally planned for last December, were set out in a specific or ‘bespoke’ port referendum law passed last year.

Lawyers for Shirley Roulstone, a leading member of pressure group Cruise Port Referendum Cayman, argued that this law was unfair for a variety of reasons. These were as much about what it didn’t include as what was in there.

There were no restrictions on using public funds to promote a ‘yes’ campaign for the port, no provisions to ensure ‘objective information’ was provided to voters, and no campaign finance rules.

The law had allowed government to conduct a “one-sided propaganda campaign” for the port, lawyers for the National Trust claimed during the case.

What else were the campaigners concerned about?
The protesters took issue with the way the question was formulated, saying it was skewed to achieve a ‘yes’ vote. They also expressed concern about the initial date set for the referendum, arguing that it denied people who had recently registered to vote the right to take part in the referendum. Some of those concerns fell away because government agreed to change the question and the date was pushed back indefinitely when the court granted a ‘stay’ delaying the referendum until the court action was complete.

What did the court decide on Wednesday?
The court ruled that the specific Referendum Law drawn up by government for the port is unlawful because it is ‘incompatible’ with Cayman’s Constitution.

Justice Owen ruled that there must be a more general ‘framework law’ that dictates how such people-initiated referendums are handled. He decided that the constitutional provision allowing for these kinds of votes, carried with it an inherent expectation that they would be free and fair votes undertaken according to certain principles set out in law.

He went on to call out successive governments for failing to enact such a law in the years since the provision for people-initiated referendums was inserted into the Constitution more than a decade ago.

He said the “controversy and uncertainty” surrounding the port vote was the “predictable consequence” of the legislature’s failure to do so.

Did he agree that the process government had followed was unfair?
Justice Owen stated that he would not rule on whether the absence of a general referendum law had resulted in “substantive unfairness” in the context of the campaign to date. However, his comments indicated that he did agree with some of the key concerns expressed by the protesters.

He said, “The evidence before the court in this case does in my view provide considerable support for the argument that the way the referendum question was originally formulated and the date chosen; the linking of eligibility to the Elections Law so that persons not already registered could not qualify to vote by the chosen referendum date; the absence of any campaign finance rules or any rules governing political broadcasting; and the absence of any rules governing provision of objective information to voters all combined to create an unequal playing field which was heavily stacked in favour of the government side to an extent which endangered the right to a fair and effective vote.”

How would a general referendum law help?
Government made the point in court that it wouldn’t necessarily help. The same provisions deemed unfair in the port vote law could equally have been included in a more general framework law.

The judge acknowledged it would not necessarily eliminate the risk that the odds would be stacked in favour of government and against those seeking to overturn government policy through a referendum.

But he said it was preferable to creating a new law for each referendum.

“Allowing the democratic representatives to change the ground rules every time there is a referendum risks the rules being changed to suit their policy choice,” he said.

The judge ruled that a standard law that set down a regulatory framework for referendums and dealt with the various matters raised – ranging from how the question is formulated to the extent to which government is allowed to campaign for one side or the other – was required by the Constitution to ensure the best chance of a fair vote.

Who will draw up the referendum law?
It will be up to the elected legislators to draft and pass the law, presumably with reference to international protocols, such as the Venice Commission which was heavily cited in the case, and to the local Constitutional Commission. The judge said it was “unfortunate” that no government had responded to a 2011 research paper by the Constitutional Commission which he said highlighted the “obvious need for a general referendum law”.

He acknowledged that it was not the place of the court to propose or write legislation. But he said the law would need to be crafted to ensure a “fair and effective right to vote” as guaranteed to Cayman citizen’s through the Constitution.

The law could reasonably be expected to deal with issues like campaign finance, voter registration and access to objective information during the run-up to a people-initiated referendum. While the details will be up to the legislators, if the law doesn’t meet the standards to ensure a ‘free and fair’ vote, it could be open to legal challenge.

What has government said?
Government expressed disappointment with the court’s decision and announced plans to appeal. However, lawyers indicated during the case that a draft bill was already in the works and could be brought to the Legislative Assembly in the latter part of 2020. Whether that schedule will be pushed forward in light of the judge’s ruling remains to be seen.

What does this mean for the timing of the referendum?
The precise implications on the vote are not clear but it seems likely that the vote cannot now be held until and unless government passes a general framework law for referendums.

It would then need to redo the process of setting the question, date and details of the port vote. That could change depending on any appeal or on the detail of the judge’s decision on reliefs, which is likely to come next week.

So when will people get to vote?
It now seems unlikely that a vote will be held until the latter half of 2020 at the earliest. It is feasible that government could successfully appeal the ruling or divert resources to push through the general referendum law in order for the poll to be held sooner. It is possible that it could be pushed back as far as next year.

CPR Cayman is still calling for the final environmental and geotechnical reports to be produced before the vote takes place. In a statement Wednesday, the group raised the prospect of the referendum being delayed until the next election.

It said, “As we draw closer to an election year, CPR would like to acknowledge that it is not opposed to the referendum being held at the same time as the next general election, in May 2021.”

For political reasons, it is unlikely that government will want to have the port vote on the same ballot as a general election that could conceivably involve some of the anti-port campaigners running against government members in key seats. For practical reasons, with a $200 million contract in limbo pending the conclusion of the referendum, they are also likely to push for an earlier vote.

Is Verdant Isle still interested?
Despite initial concerns that Verdant Isle would walk away from the table, there has been no indication from the group that there is a time limit on its interest in the project. The group did not respond to requests for comment by press time Thursday.

What was the concern about voters being disenfranchised?
When government set the initial date for the referendum for 19 Dec. 2019, it effectively denied certain people the right to vote, the protesters argued. Cayman’s electoral roll is only updated every three months so anyone who wanted to vote would have had to have registered by 1 Oct. (before the referendum date was established). That became a moot point once the vote was delayed.

However, lawyers for Roulstone and the Trust argued that any future referendum should include sufficient time and opportunity for people to register to vote for the precise purpose of taking part in that referendum. They argued that there would be people who were not interested in voting in general elections that could and should have the right to vote in a referendum.

Could a new general referendum law affect the petition?
It is likely that any referendum law would include time limits for the collection of signatures for a petition. For example, government could choose to place a six- or 12-month limit for campaigners to reach the target of gathering signatures from 25% of the electorate – the threshold which triggers a people-initiated referendum. Most referendum laws around the world contain this kind of provision, and is something Premier Alden McLaughlin alluded to in a previous interview with the Cayman Compass.

“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.”

However, it is unlikely that any provisions put in the law could or would be applied retrospectively.

 

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