Justice Tim Owen, QC, issued his ruling this week in the judicial review challenge brought by Shirley Roulstone, a member of CPR Cayman, which challenged the legality of the law enacted by Government to establish the process and procedure for the conduct of the referendum on the proposed cruise ship berthing facility.
Justice Owen found the law to be unconstitutional in that the Constitution allowed the people of the Cayman Islands to have referendums that were carried out fairly and effectively, rather than just giving them the right to have referendums.
As a result, Government needed to enact a general law governing the conduct of people-initiated referenda rather than a specific law that it could tailor to suit its agenda in any particular referendum, a press release from CPR Cayman stated. In particular, Section 70 of the Constitution conferred a direct democratic right on the people to veto the policy choices of their democratic representatives, the Grand Court heard.
“Allowing the democratic representatives to change the ground rules every time there is a referendum risks the rules being changed to promote their policy choice,” the ruling also stated.
CPR Cayman said that the decision showed that the people’s voice counted and that their vote in the referendum would count.
“The citizens of the Cayman Islands can challenge the Government and challenge the status quo to bring about a precedent-setting, positive outcome that protects the democratic rights of all citizens,” the Group said.
Shirley Roulstone was represented in the judicial review by Kate McClymont of Broadhurst LLC.
Ms McClymont stated: “The fairness and effectiveness of referenda, like elections, is one of the cornerstones of democracy. This is a landmark decision that is likely to result in the referendum on the proposed cruise ship berthing facility, and future people-initiated referenda, being conducted more fairly than would otherwise have been the case. Provided the Legislature adopts the recommendations made by the Hon. Justice Owen QC, it is also likely to result in the public being provided with more balanced information on which to make an informed decision when the time comes to vote in the referendum.”
As a result of this Court ruling, Government is required to draft a general law that provides a framework for the conduct of all people-initiated referenda and made recommendations regarding some types of provisions that should be included in that law to protect the people’s constitutional right to have referendums conducted fairly.
Government has said that is has already started the process of drafting the type of general law that the Court has said is required. Despite this, they have also indicated their intention to appeal the judgment.
“We encourage our elected officials to engage with stakeholders and seek input on the drafting before passing the next Referendum Bill into law; the next referendum legislation should strive for the highest standards of good governance and to provide equality, fairness, transparency, objectivity on the part of Government,” CPR Cayman said.
CPR’s Johann Moxam said: “We would like to thank Shirley Roulstone for her bravery, tenacity and dedication to her country as a humble, concerned citizen. She stood up against an attempt at injustice at the highest level and won. We are proud to include her amongst our executive committee and to have her represent us and the people of the Cayman Islands in this important case.”
Ms Roulstone said: “Today’s ruling is proof that citizens can and must monitor the actions of their Government and be ready to challenge the Government when its action or inaction is contrary to the standards of fairness, good governance and democracy that we have the right to expect.”
Ms Roulstone thanked her legal team and also The National Trust for joining the judicial review proceedings as an interested party, which, she said, had provided “important evidence on the devastating environmental impact that the proposed cruise berthing facility would have and the way the Government has misled the public about that impact.”
The proposed cruise berthing project galvanised more than 6,000 registered voters out to petition for a referendum, an issue which CPR Cayman said “remains a current and critical threat to our islands”.
“We are more convinced than ever that we can reach the threshold of >50% of registered voters voting NO in the referendum, which will prevent the Government proceeding with the project. All it takes is for the people of these islands to exercise their right to vote. Shirley has proven through today’s decision that one person can make a difference. Your vote will count!” CPR Cayman stated.
CPR Cayman called for the Government to commission a fully updated environmental impact statement on the revised project, in consultation with the Department of Environment and the National Conservation Council, and encouraged the Governor to convene a public enquiry to examine the economic, environmental and social implications of the proposed facility.
They also asked that the Elections Office to create a document addressing the procedures and practices for the referendum including, amongst other things: economic assistance for overseas voters to return ballots; the need to audit the electors list to remove deceased persons, mentally impaired persons and anyone else not entitled to vote; the procedure to ensure anyone needing mobile voting assistance is provided with that assistance; a clear indication to employees of public authorities and statutory authorities that they have the right to campaign for either a “yes” or “no” vote without fear of retribution, recognising that they are distinct from core civil servants and not bound to impartiality.
CPR Cayman said it would agree to the referendum being held at the same time as the next general election, in May 2021.