Appeal hearing on port referendum law concludes

Validity of October law questioned

Legal counsel representing Cruise Port Referendum Cayman opened the second day of arguments before the Court of Appeal on Thursday, outlining its case against the Port Referendum Law and government’s approach to the people-initiated referendum. 

Attorney Chris Buttler, speaking on behalf of Shirley Roulstone and the National Trust for the Cayman Islands, objected to the Port Referendum Law’s handling of voter registration, campaign financing and provision of objective information.

The lack of a standing referendum law prevented potential voters from understanding the election procedures and inhibited voter registration, Buttler argued via Zoom video. 

“By the time it became clear how to register, it was too late to do so,” Buttler said. He argued that the passage of the Port Referendum Law in October 2019 and government’s setting of the vote for December last year did not provide sufficient time for voter registration and did not meet the standards set out in the Elections Law.

“The problem in practice is that, unlike the Elections Law, the referendum law isn’t a standing law,” he said.

Incorporation by government of the cargo port into the final referendum question also went against the petitioners’ original objective to vote on a cruise berthing facility, rather than cruise and cargo, he added.

The lack of campaign-finance provisions or rules on political broadcasting further prejudiced the referendum in favour of government’s stance on the issue, Buttler said. He argued that a standing referendum law, rather than the bespoke law passed in October, could have reduced the risk of political bias in the port campaign.

“A general law provides a structural safeguard and may have provided for a more neutral approach to campaign financing, political broadcasting and provision of objective information,” he said. 

On Wednesday, Buttler argued that the Legislative Assembly’s failure to pass a standing referendum law violates section 70 of the Constitution, which addresses people-initiated referendums.

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 said Wednesday.

“The backstop lies with the people and is subject to a relatively high threshold,” he said.

In continued arguments on Thursday, Buttler said the omission of campaign-finance rules in the Port Referendum Law was a policy choice aimed at promoting government’s agenda to build a cruise berthing facility. 

“The practical effect of formulating the rules so as to assist the government’s campaign is that government was able to outspend the petitioners by a figure of six to one,” he said. 

The Port Referendum Law also failed to establish rules on access to state media, “resulting in a striking mismatch”. 

While government secured 4,000 free advertisements on state-owned Radio Cayman, Buttler said, “Radio Cayman refused to extend free advertisement to the petitioners.”

This resulted in a campaign bias in favour of government, he said. 

Buttler also objected to the content of government’s campaign material, contending that misleading points were promoted as factual to the general public.

While one government brochure said the goal was to establish 10 times the amount of coral as that removed by dredging, Buttler said the reality was that less than 3% of the coral impacted was planned for relocation.

Co-counsel Thomas Lowe expanded on the coral and environmental impact later in the morning. He characterised government and the Department of Tourism’s campaign as “wholly imbalanced” and “propaganda”.

Buttler also objected to a government brochure claim that the jurisdiction risked the loss of $200 million in annual cruise revenue. He said the actual loss was earlier calculated as 1% of the annual revenue.

Counsel for the government, Alan Maclean, QC, did not accept the 1% calculation as accurate.  

On the first day of appeal arguments, Maclean opened by rejecting 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 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 case-by-case referendum legislation.

“There is no international consensus on what is required to make a vote fair and effective,” he said, arguing 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 asked.

Maclean responded, “Pretty much, yes.”

There is no set recipe to bake a “compliant referendum cake”, he said.

However, on Thursday, the publicly viewable livestream of the case cut out during much of Maclean’s response.

Proceedings later resumed over a custom Zoom link provided to participants and the press. Maclean made his final points in defence of the Legislative Assembly and Cabinet’s handling of the referendum. He argued that it made little sense to restrict the referendum to exclusively the cruise issue, as Buttler had suggested, given the project’s dual role as a cruise and cargo facility.

“They have marched in step together since 2015,” he said, adding that it was only logical for government to campaign in defence of the project, when it had been such an important election issue.

Regarding the coral debate, he said that issue should be left to the public to evaluate. He defended the goal of utilising microfragmentation to produce 10 times the amount of coral as that lost to dredging. 

The two-day proceeding concluded Thursday.

The court did not indicate when a decision on the appeal hearing would be delivered.

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1 COMMENT

  1. Can anyone reconcile Alden’s public statement that, although the cruise port project is now dead in the water, he had to pursue the appeal because of constitutional concerns about the courts over-reaching themselves and setting aside democratically passed laws, with his QC’s statement that government accepts the Cayman legislature is not sovereign, and arguments that although the courts can in principle set aside unconstitutional laws, they should not have done so in this case?