UPDATE 2 July: The Cayman Islands Court of Appeal has overturned the Grand Court judicial review which declared the referendum law as unconstitutional.

Posted by Cayman Compass on Thursday, July 2, 2020

Posted by Cayman Compass on Thursday, July 2, 2020

1 July: The Cayman Islands Court of Appeal on Thursday is expected to return its ruling on an ongoing civil battle stemming from the proposed $200 million cruise berthing facility and cargo port in the George Town harbour.

The appeal court has been tasked with deciding whether the Grand Court was wrong to have quashed the Referendum Law, and if so, whether to reinstate it.

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The judgement is expected to be handed down at 10:30am on Thursday in Court 5.

The parties, counsel and press will be the only people allowed physical access to the courtroom. The proceedings will be streamed at https://www.judicial.ky/courts/court-streams. 

At the heart of the legal battle is a question of how section 70 of the Cayman Islands Constitution Order is to be interpreted. 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.

Grand Court judge Tim Owen in February ruled in favour of Shirley Roulstone, of Cruise Port Referendum Cayman, and the National Trust for the Cayman Islands, who are listed as an intervening party. In March Justice Owen then quashed the Referendum Law and declared it “incompatible with [Section] 70”.

In May the Cayman Islands Government brought the matter before the Appeal Court, claiming that section 70 of the Constitution does not specify that a general law must first be established and that Justice Owen was wrong in his rejection of tailored legislation.

During the hearing, Alan Maclean, QC, also argued that the court was to be “vigilant not to trespass on the legislature’s territory.”

Maclean also argued that Owen went beyond the minimum legal requirement and in doing so “asked himself the wrong question and ended up in the wrong place.”

Chris Buttler, who represents Roulstone, argued that Owen was correct to have come to the conclusion he did. Buttler urged the appeal court not to strike down the Grand Court’s ruling.

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.

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