Acting Grand Court Judge Tim Owen has quashed the Referendum Law that was passed in the Legislative Assembly late last year to pave the way for a vote on government’s $200 million cruise berthing and cargo project.
Owen handed down his ruling on consequential relief on Monday, outlining his decision on the judicial review case filed by Cruise Port Referendum Cayman’s Shirley Roulstone, and the reasoning behind it.
Last month, the judge ruled in favour of Roulstone, finding that the referendum law passed in the House was “incompatible” with the constitution.
In the 10-page document, Owen declared that the Cabinet and the Legislative Assembly’s “decision to make the Referendum (People-Initiated Referendum Regarding the Port) Law 2019 was unlawful because it was incompatible with [Section] 70 of the Cayman Islands Constitution Order 2009”.
As a consequence, the judge has issued an order quashing the law.
He has granted leave for the government’s legal team, headed by Mark Shaw QC, to appeal his decision.
Owen has asked all legal teams involved, including the National Trust team which is also a party in the judicial review, to draw up an order to reflect the terms of his judgement, an agreed costs order between them, and his grant of leave to the government to appeal to the Court of Appeal.
He has also asked that they draw up his grant of a stay on the quashing of the law “pending any appeal”.
Premier Alden McLaughlin has already gone on record saying government will be appealing Owen’s decision.
Roulstone and National Trust had filed for judicial review of government’s decision to proceed with a referendum on the cruise and cargo port project before an updated environmental impact assessment is completed.
Government, in the run-up to the case, conceded on most of the grounds contested in the judicial review, including rewording the referendum question and submitting an environmental assessment scoping update on the project to the Environmental Assessment Board in January, on the eve of the court hearing.
Shaw had argued that there was no need to quash the referendum law. However, the court disagreed.
In his decision, Owen said “if the court were to accede to the Defendant’s request not to make a quashing order in this case on the basis that the Legislature has both the power and the function to repeal/revise the Referendum Law there is, in my view, a danger of obfuscation. The consequences of my finding that the Referendum Law is a nullity, and thus devoid of legal effect, is that it is incapable of being revised or amended.”
“To decline to quash it for the reason advanced by Mr. Shaw would risk giving the impression that the Referendum Law remains in force pending its revision/repeal,” he said, adding, “the court should not, in my view, encourage the appearance of what would be a legal fiction.”