Updated (3:30pm Wednesday):
The lack of an established referendum law contributed to messiness and confusion in navigating the islands’ cruise and cargo port vote, argued legal counsel representing Shirley Roulstone of Cruise Port Referendum Cayman in the Court of Appeal on Wednesday.
“It’s difficult to avoid the impression that the absence of a standing law contributed to the government’s inept response to the petition,” attorney Chris Buttler said during the afternoon session.
Buttler sought to make the case that the absence of a general referendum law leaves a people-initiated referendum, such as the cruise port vote, vulnerable to political manipulation and the whim of the legislature.
He argued that section 70 of the Constitution crystalises the Legislative Assembly’s duty to establish a framework law, which would set the ground rules for voting procedures and campaign finance. By failing to establish a general law, Buttler said, the Legislative Assembly has been in violation of section 70 since the Constitution Order was passed in 2009.
“The law to be made governs and pre-dates the trigger for the individual referendum,” he said.
“The Legislative Assembly is under duty to make [what] must necessarily be a general law.”
A general law reduces the possibility that the legislature might establish procedures tailored to favour a desired outcome.
“They are more likely to establish a neutral set of rules if there is a general law rather than establishing the law during a policy dispute,” Buttler said.
Setting the ground rules on a case-by-case basis risks undermining the intention of section 70 – to provide a role for direct democracy within Cayman’s representative model, he added.
“The backstop lies with the people and is subject to a relatively high threshold,” he said.
Lawmakers may be inclined to modify campaign-finance regulations or voter-registration procedures in order to encourage a particular outcome, he argued.
Before arguments regarding the cruise port appeal closed on the first day of the two-day hearing, Buttler outlined the main features of the port referendum law, passed in October, that he said undermined the rights established in section 70.
The first issue, he said, related to the ability to register to vote in the period between passing the law and the referendum date.
Prior rules governing voter registration would have avoided confusion and complaints by the public, he said, because voters would have known the regulations in advance.
“If there was a standing referendum law, then it might be that electors couldn’t complain if the referendum was then brought by short notice,” he said.
Court of Appeal arguments will continue Thursday at 8am over Zoom video.
The National Trust for the Cayman Islands is listed as an intervenor in the case, in support of respondent Shirley Roulstone.
Original story (12pm Wednesday): The Cayman Islands government opened arguments in defence of its port referendum law Wednesday morning, appearing before the Court of Appeal over Zoom video.
Speaking on behalf of the Legislative Assembly and Cabinet, Alan Maclean, QC, rejected the Grand Court’s February ruling that a framework law – rather than the ‘bespoke’ legislation established for the port vote – is required under the Constitution.
Maclean argued that section 70 of the Constitution, which guides people-initiated referendums, does not specify that a general law must first be established, and that Grand Court Justice Timothy Owen was wrong in his rejection of tailored legislation.
“The court must be vigilant not to trespass on the legislature’s territory,” Maclean said.
By seeking to compel the best guarantee for a fair election, Owen went beyond the minimum legal requirement, he contended.
“The judge asked himself the wrong question,” Maclean said, “and ended up in the wrong place.”
He rejected Owen’s “gold-plated solution” as a misguided interpretation of section 70, arguing that the law does not exclude the possibility of ‘bespoke’ referendum legislation.
“There is no international consensus on what is required to make a vote fair and effective,” he said, making the argument that fair voting can come in many forms and that it is up to the legislature to determine the procedures.
“Don’t chuck out one way of skinning the cat completely,” he said.
Justice John Goldring questioned Maclean on what constitutes a fair election.
“Would anything go, provided you can vote and you can get there [to vote]?” Goldring ask.
Maclean responded, “Pretty much, yes.”
There is no set recipe to make a “compliant referendum cake”, he said.
The appellant continued to present arguments through Wednesday morning. The case is scheduled to last two days before the Court of Appeal, concluding Thursday.
What does section 70 of the Constitution say?
People-initiated referendums 70.—(1) Without prejudice to section 69, a law enacted by the Legislature shall make provision to hold a referendum amongst persons registered as electors in accordance with section 90 on a matter or matters of national importance that do not contravene any part of the Bill of Rights or any other part of this Constitution. (2) Before a referendum under this section may be held— (a) there shall be presented to the Cabinet a petition signed by not less than 25 per cent of persons registered as electors in accordance with section 90; (b) the Cabinet shall settle the wording of a referendum question or questions within a reasonable time period as prescribed by law; and (c) the Cabinet shall make a determination on the date the referendum shall be held in a manner prescribed by law. (3) Subject to this Constitution, a referendum under this section shall be binding on the Government and the Legislature if assented to by more than 50 per cent of persons registered as electors in accordance with section 90.