Government has appealed the Grand Court’s decision to strike down the port referendum law, which set out the conditions for a people’s vote on the controversial plans for new cruise piers in George Town Harbour.

Government’s appeal was filed on Wednesday, 4 March. It named Shirley Elizabeth Roulstone as the respondent and the National Trust for the Cayman Islands as the interveners.

Roulstone, a member of Cruise Port Referendum Cayman, and the National Trust applied for the judicial review hearing, which was heard before Acting Justice Timothy Owen in the Grand Court in January. The purpose of the hearing was to provide guidance on how Section 70 of Constitution Order 2009 was to be interpreted.

They highlighted concerns that the law included no restrictions on campaign finance or using public funds to sway the vote among other issues.

They argued that the wording of the Constitution indicates there must be an overarching law setting out the rules and regulations for referendums to ensure an equal chance of success for both sides.

Section 70 deals with people-initiated referendums. It calls for a law to be enacted “by the Legislature [which] shall make provision[s] to hold a referendum amongst persons registered as electors…”.

However, Section 70 does not state whether there should be one law that governs all people-initiated referendums or a new law for each such referendum, or a combination of both.

In February, the judge delivered his ruling on the case, in which he agreed and ruled that there must be a more general ‘framework law’ that dictates how such people-initiated referendums are handled. He said government’s ‘bespoke’ port referendum law was unconstitutional and ordered that it be quashed “because it fails to satisfy the requirement for a general law governing all s. 70 referendums and is itself not in accordance with such a law”.

The government’s notice to appeal, which is a public document available at the court, did not include its grounds of appeal. However, parties involved in the matter have told the Cayman Compass that the government has listed five grounds. Much of their argument focusses on the judge’s decision that a general referendum law was required for people-initiated referendums, rather than a specific or bespoke law for each individual vote.

The first ground is that Section 70(1) of the Constitution Order “makes no prescription as to the form of the ‘law’ that must be enacted”. Government argues that there was no lack of clarity in the language of Section 70, and that, ultimately, the form of legislation that must be enacted is a matter that should have been left for the legislature.

The second ground of appeal claims that Owen “erred in his approach and misdirected himself in relation to the task of construction”. The ground alleges that Owen was wrong to have proceeded on the basis that the court’s task was to decide what form of legislation would be most consistent with Section 70, while best guaranteeing legality, legal certainty and fairness.

The third ground claims inconsistency between Owen’s two conclusions – the first being that a general law is required to regulate the petition process, and the second that a people-initiated referendum cannot be regulated by a specific law, such as the Referendum Law 2019. This ground claims that even if the judge was correct to view that the petition and the verification processes are required to be regulated by a general law, that does not mean that the referendum itself must also be regulated by the same law, or a general law.
Government’s fourth ground claims that Owen’s conclusion that “a general law would reduce the risk that the odds may be stacked against those seeking to veto a Government policy” does not support his findings of Section 70. It claims the “reason is illogical and/or otherwise erroneous” because the legislature’s role is to provide a check on the government.

Government’s final ground claims that by quashing the Referendum Law, Owen breached the principle of separation of powers, and that he ought to have limited himself to simply declaring the law incompatible with the Constitution.
No date has been set for the appeal hearing.

| Cayman Compass Journalist James Whittaker contributed to this article.

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