As the leading organisation pursuing and advancing the Cayman Islands’ first people-initiated referendum, being held on the proposed cruise berthing facility in George Town, CPR Cayman is proud to announce that one of its members, Ms. Shirley Roulstone, has instigated legal action to ensure the referendum is conducted in a manner that is both fair and lawful. CPR Cayman has not initiated proceedings as it is not an incorporated entity.
Following CPR Cayman’s letter to Government on the Referendum Bill, sent on 26 October 2019 together with the legal opinion of Chris Buttler and Helen Mountfield QC, and the failure of Government to incorporate amendments to that Bill substantially addressing the bulk of the concerns raised, CPR Cayman sent a letter before action to Government on 12 November 2019 indicating that unless certain steps were taken, it would consider issuing judicial review proceedings.
The steps that CPR Cayman asked the Government to take, in its letter before action dated 12 November 2019, have not been implemented by Government. Accordingly, Ms. Shirley Roulstone filed an application on 21 November 2019 seeking leave of the court to apply for judicial review and asking for a protective costs order. The court has the discretion to grant a protective costs order where someone, like Ms. Roulstone, is proposing to bring an application for judicial review in the interests of the general public. If a protective costs order is granted, it will protect Ms. Roulstone from the risk of a substantial costs order being made against her if the judicial review application is not successful. Provided the court grants the protective costs order, Ms. Roulstone will then apply for judicial review.
CPR Cayman continues to be committed to giving the people of the Cayman Islands the opportunity to participate in a referendum on the Port issue, which is a matter of national importance. Ms. Roulstone is pursuing the judicial review in an effort to ensure that the referendum, when it occurs, is conducted fairly. We are concerned that the current proposal for the conduct of the referendum is not fair, lawful or in keeping with the intention behind our constitution. As this is the first people-initiated referendum in the Cayman Islands, it will set the precedent for future people-initiated referendums, so it is particularly important that we hold the Government to the highest standards of democracy.
Following widespread concern from the community on aspects of the Referendum Law, which many have perceived to be unfair and undemocratic, CPR Cayman sought advice on the lawfulness of areas of key concern: (a) the referendum question – lack of neutrality and inclusion of the cargo port (b) the date of the referendum, which causes exclusion of 220 newly registered voters and is at the busiest time of year for many people (c) the exclusion of campaign financing restrictions (d) the exclusion of section 91(1) of the Elections Law, 2017, which would otherwise ban the sale of intoxicating liquor on a referendum day. The legal opinion confirmed that certain aspects of the Referendum Law and the regulations made pursuant to that Law that establish the referendum question and date, are amendable to challenge by judicial review on the basis that they are unlawful and/or frustrate the intention behind section 70 of the Constitution, which is superior legislation in the Cayman Islands.
Of most significant concern to CPR Cayman is that the date that the Government has scheduled for the referendum is so close to Christmas that voter participation is likely to be significantly less than it would be if the referendum were held in the first quarter of 2020. Many people will be travelling or too busy to vote on 19 December 2019, which is one of the busiest days of the year for many people, particularly those working in the tourism industry. In addition, a referendum on 19 December 2019 does not allow enough time to properly register all the mobile voters, such as those who are disabled or elderly and the heavy mail traffic at that time of year increases the chances that postal ballots will not be received in time to be counted. The proposed date therefore threatens to disenfranchise mobile voters, people voting by postal ballot and the 220 people who have registered to vote but will not be eligible to do so until the 1st of January 2020. What CPR considers to be the unnecessary disenfranchisement of these registered voters, by selection of 19 December 2019 as the referendum date, is particularly significant given over 50% of registered voters must vote “no” in order to achieve a binding decision to prevent Government being able to build the proposed cruise berthing facility. It is therefore extremely important that everyone eligible to vote is able to do so, if they so wish. CPR Cayman is also concerned by the wording of the question established by Government, which is not neutral and conflates two separate issues, being the cruise berthing facility and an enhanced cargo port.
CPR Cayman remains dedicated to ensuring that the referendum on the proposed cruise berthing facility takes place. The legal action is being taken by Ms. Roulstone is not intended to undermine the referendum, to the contrary, she has taken that step in an effort to ensure that when the referendum does take place, it is conducted fairly and people are not unreasonably deprived of their right to participate in this important democratic event. It is our opinion that the process and procedure for the referendum currently being pursued by Government is unfair, unlawful, frustrates the intention behind our constitution and falls far short of the high standards of international best practice that we should be able to expect from our Government.
As a non-profit organisation, we are guided by the principles of accountability, transparency and good governance and we will continue to advocate and question the referendum process, with a view to ensuring the referendum is conducted fairly.