Court of Appeal rules Port Referendum law is constitutional

An impression of how the proposed piers will look - if the project goes ahead.

Cayman’s Court of Appeal has declared the 2019 Port Referendum Law to be compatible with the Constitution and has refused to grant Shirley Roulstone permission to appeal the decision before the Privy Council in the UK.

The judges, who are currently in the UK, delivered the ruling Thursday morning to a sparsely populated courtroom via a video link that was livestreamed and viewed by 67 separate devices.

In a two-page press summary document, the judges said, “The substance of the fundamental right of every Caymanian voter guaranteed by section 70 [of the Constitution Order] is to participate in a fair and effective people-initiated referendum. That right can be fully protected by an issue-specific referendum law.”

The judges further noted that a referendum law need not govern issues such as “campaign financing, political broadcasting and providing objective information”, instead they said these are matters that should be decided by the government of the day by way of policy.

“The fact that many democratic states do not have such rules for referendums shows that these are not matters of constitutional imperative but substantive questions of policy for determination by national legislatures,” reads the summary judgment.

The appeal court’s ruling is contrary to Grand Court Justice Tim Owen’s judgment. Owen originally presided over the matter and in February ruled Section 70 of the Constitution, which deals specifically with people initiated-referendums, ought to be interpreted as calling for a “framework law” that regulates the process of creating individual people-initiated referendum laws. Then in March Owens quashed the referendum law after declaring it unconstitutional.

Premier Alden McLaughlin speaks to the Legislative Assembly.

Speaking in the Legislative Assembly on Thursday afternoon, Premier Alden McLaughlin said it was an “immense”  relief for the government as the appeal court’s ruling helped to clarify the doctrine of separation powers between the Judiciary and the Executive.

“The Government, therefore, welcomes this clarification by the Court of Appeal,” said McLaughlin. “We also welcome the court’s clarification of section 70 of the Constitution, a clarification and interpretation that the government has always advocated.”

McLaughlin added, “The Government was always of the firm view that because section 70 makes no express language of about whether it should be a general or bespoke law, therefore it was open to the Legislative Assembly to enact specific law for each referendum providing it was constitutional.”

(r) Shirley Roulstone of CPR stands and her Attorney Kate McClymont of Broadhurst outside the courthouse. Photos: Alvaro Serey

Roulstone, of Cruise Port Referendum Cayman, told the Cayman Compass shortly after the proceedings she believed the decision was still a victory for the people of Cayman despite the appeal court ruling in favour of the government.

“I’m very happy with the way things have turned out,” said Roulstone. “The government may have won an appeal, but that’s all they won. The Cayman people won so much more than CPR ever, ever set out to accomplish.

“Right now, there are no piers in the harbour. People know more about what is happening in our country, they are more excited about being apart of it. So, we won a lot more than the government did by winning an appeal.”

A letter released by CPR echoed Roulstone’s sentiments and added that, “While the outcome of the appeal is disappointing, the objectives of the legal action brought by Ms. Shirley Roulstone, a member of CPR Cayman, have largely been achieved in any event.”

CPR said its main objective was to ensure a “general framework law was passed”, to expose what they believe to be “inequalities and unfairness of the petition and referendum processes”, and to ënsure the referendum “would not take place on the date originally proposed by the Government”.

While CPR has hailed victory, McLaughlin believes it was the voting public that came out on the losing end of the legal battle over the port project.

He said the people of Cayman were denied their right to say either way how they felt about the project.

“What CPR has done… they have stopped the project, but they have also prevented the people from having the opportunity to vote whether it should go ahead or not. Now if that is not a perversion of the democratic process, I do not know what else would be,” McLaughlin said Thursday in the Legislative Assembly.

Roulstone’s attorney, Broadhurst’s Kate McClymont, said, “I am confident that the victories we have achieved along the way will ensure that the referendum on the port project, and the others that follow it, will be conducted more fairly than would otherwise have been the case.”

National Trust director Nadia Hardie told the Compass they were happy with the government’s commitment to the environment.

(r) Nadia Hardie of the National Trust stands with Colm Flanagan of Nelson and Co. outside the courthouse. Photos: Alvaro Serey

“The government actually conceded our point that they must take into consideration the environmental protection, so from that standpoint, the National Trust is very, very happy about that. On the other matters which are more the referendum laws, that is outside the National Trust’s purview, and therefore we are going to watch with interest with what happens.”

While speaking in the Legislative Assembly McLaughlin reiterated his previous statement that government will not pursue the project in the balance of the current term, however, he said this will not be the end of the issue in Cayman.

“This project and this issue is not going to go away whether I am here or the deputy premier is here or not,” he said.

Since Roulstone was not required to give undertaking for damages according to Justice Owen’s ruling, the premier said government will not be able to recover any of the funds spent on the project up till when it was paused for the referendum case nor “the large sums of funds spent by the Elections Office” in preparation for the referendum.

The court did not award costs.

Although the appeal court has refused to grant Roulstone permission to appeal the case to the Privy Council, this does not bar her and her legal team from applying directly to the Privy Council. Roulstone said they are still considering such an option.

*Additional reporting by Cayman Compass Journalist Reshma Ragoonath.

Timeline of events:

Sept. 2019: CPR triggered first ever people’s initiated referendum by securing 5,305 signatures (25% of registered voters).
Oct. 2019: Port Refedum Bill was gazetted, and an initial referendum date was set for 19 Dec 2019.
Dec. 2019: Court delays port referendum, set a hearing date for judicial review in January 2020.
Jan. 2020: Grand Court heard the judicial review on whether the Port Referendum Law is constitutional.
Feb. 2020: Grand Court ruled the Port Referendum Law is unconstitutional, Premier announced plans to appeal the verdict.
March 2020: Grand Court quashed the Port Referendum Law.
April 2020: Appeal set for May.
May 2020: Government appealed the Grand Court’s ruling.
July 2020: Appeal Court rules against Grand Court, and declare the Port Referendum Law to be constitutional. (Current article).

READ IT FOR YOURSELF

Click here to see Court of Appeal Final Judgment in the matter of The Cabinet et al v Shirley Roulstone.

Click here to read the CPR Cayman Press Release 2 July 2020

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