Cabinet of The Cayman Islands and Legislative Assembly of The Cayman Islands v Roulstone (National Trust for The Cayman Islands Intervening)
| Jurisdiction | Cayman Islands |
| Judge | (Goldring, P., Field and Beatson, JJ.A.) |
| Judgment Date | 02 July 2020 |
| Court | Court of Appeal (Cayman Islands) |
(Goldring, P., Field and Beatson, JJ.A.)
Constitutional Law — people-initiated referendums — framework law — Referendum (People-Initiated Referendum Regarding the Port) Law 2019 not incompatible with Constitution, s.70 — constitutional right to participate in fair and effective people-initiated referendum may be protected by referendum-specific law — general or framework law not essential
Held, allowing the appeal:
(1) The substance of the fundamental right of every Caymanian voter guaranteed by s.70 of the Constitution was to participate in a fair andeffective people-initiated referendum. As that right could be fully protected by a referendum-specific law and because of the clear textual indication from the use of the terms “a law” and “a referendum,” s.70 did not require a general law on people-initiated referendums. A referendum-specific law which was not substantively flawed would suffice. In a constitutional framework which remained primarily a representative democracy, what s.70 required, fairly and effectively to give effect to the direct rights of Caymanians, must be seen in the context of the constitutional roles assigned to other institutions and individuals and having regard to the need to balance giving the fullest expression of constitutional rights with those roles. The fact that different approaches had been taken by the legislatures in different jurisdictions as to the measures necessary to ensure a fair and effective right to vote pointed away from interpreting s.70 to require a general law. Just as a court should not imply limits to a statutory provision to give it what the court considered to be a sensible or desirable result, so it should not imply limits into a constitutional provision for that purpose. To do so would risk trespassing on the territory of the legislature. There were strong textual indications that a referendum-specific law was authorized by s.70. It was not argued that a referendum-specific law could not provide as fair a process as a general law and thus fully protect the constitutional right to participate in a fair and effective people-initiated referendum. The problem identified was the risk of a partisan executive or legislative assembly stacking the odds in favour of its own position in a referendum-specific law. But it was accepted that a general law could also contain similar substantive flaws. The requirement for a general law would be a more restrictive interpretation of s.70 than an interpretation which gave the Legislative Assembly a choice between a general or specific law. Further, the existence of a general law might make it difficult to make provision for the details of a particular referendum according to its subject matter. For example, in the present case the plan for the cruise berthing facility and refurbished cargo dock was a manifesto commitment of the party elected in 2013 and which was part of the coalition government formed after the 2017 election. A general law requiring a neutral attitude by the Government or prohibiting one-sided campaigning by the authorities might be unrealistic. The Government did not dispute that the rule of law favoured the enactment of general regulations governing the petition verification process which pre-dated any people-initiated referendum. It was not however the case, as the judge stated, that absent such rules those parts of the process lacked legal support. It was not suggested that it was contrary to the Constitution for the verification to be conducted by the Elections Officer. The legal framework provided by ss. 70 and 90 of the Constitution provided sufficient legal support for the Elections Officer to exercise the task of verification flexibly but within that legal framework, and subject to the supervisory jurisdiction by way of judicial review, and the more intense scrutiny that was appropriate where the question was whether the exercise of power had infringed a constitutional right.Accordingly, subject to the respondent’s notice, the Government’s appeal succeeded (paras. 71–89).
(2) The Port Referendum Law was not constitutionally flawed for the reasons in the respondent’s notice. First, in relation to persons who had not registered as electors, despite the difference in total lead times, there was no material difference between the position for elections and referendums. For both, s.11 of the Elections Law provided that an application to be registered would take effect from the beginning of the following quarter. There would always be some people qualified to be registered as an elector who, if they were not registered when an election or referendum was called, could not get onto the register. The submission that it was not clear what people had to do to become electors would be rejected. It was clear from the Constitution that the referendum regime under s.70 was tied to a person being a registered elector. Secondly, it was not unconstitutional for the Government to formulate the matter of national importance as it had done in s.4(1) of the Port Referendum Law. The constitutional right to a people-initiated referendum was limited by the need to ensure that the issue was one of national importance and was formulated in a way that it could be put to an effective vote. Section 70 of the Constitution did not give Caymanians the right to determine what issues were of national importance, only the right to vote in a fair and effective referendum on such issues. If an issue raised in a petition was not in fact a matter of national importance, the right to a referendum on it would not be triggered by a petition signed by 25% of registered voters. If it was a matter of national importance, the right to a referendum would be triggered and it would not be constitutional for the Government to formulate the matter or settle the referendum question in a way that was unrelated or only loosely related to the petition. In the circumstances, the plan for the cruise berthing facility had always been linked to enlarging the cargo port. A referendum question about the cruise berthing facility which left out any reference to the cargo port would be artificial. Thirdly, in respect of the absence of rules governing campaign financing, political broadcasting and providing objective information, the respondent accepted that there were variations in international practice and no clear guidelines. These were not matters of constitutional imperative but substantive questions of policy for determination by national legislatures. The court accepted the Government’s submission that it could not be said that the regulation of campaign financing or the provision of objective information was inherent in the concept of a fair and effective people-initiated referendum. It was for the Cayman Islands Legislative Assembly to decide whether and, if so, what provision to make on these matters in its law. The Grand Court judgment could not be upheld on the grounds relied on in the respondent’s notice (paras. 90–106).
(1)Bennett v. Speaker, 2019 (1) CILR 1, considered.
(2)Brown v. Stott, [2000] UKPC D3; [2003] 1 A.C. 681; [2001] 2 W.L.R. 817; [2001] 2 All E.R. 97, considered.
(3)De Freitas v. Agriculture Secy., [1999] 1 A.C. 69; [1998] 3 W.L.R. 675, considered.
(4)Deputy Registrar v. Day, 2020 (1) CILR 99, considered.
(5)Hewitt v. Rivers, 2013 (2) CILR 262, considered.
(6)Home Affairs Min. v. Fisher, [1980] 1 A.C. 319; [1979] 2 W.L.R. 889; [1979] 3 All E.R. 21, considered.
(7)Hunter v. Southam, [1984] 2 SCR 145, referred to.
(8)Inco Europe Ltd. v. First Choice Distribution (a firm), [2000] UKHL 15; [2000] 1 W.L.R. 856; [2000] 2 All E.R. 109, considered.
(9)Ng Ka Ling v. Director of Immigration, [1999] HKCFA 17; [1999] 1 HKLRD 315; [1999] 1 HKC 291; (1999), 6 BHRC 447; 2 HKCFAR 4, referred to.
(10)Pollen Estate Trustee Co. v. Revenue & Customs Commrs., [2013] EWCA Civ 753; [2013] 1 W.L.R. 3785; [2013] 3 All E.R. 742, considered.
(11)R. (Bancoult) v. Foreign & Commonwealth Secy. (No. 2), [2008] UKHL 61; [2009] 1 A.C. 453; [2008] 3 W.L.R. 955; [2008] 4 All E.R. 1055, referred to.
(12)R. (Miller) v. Prime Minister, [2019] UKSC 41; [2020] 1 A.C. 373; [2019] 3 W.L.R. 589; [2019] 4 All E.R. 299; 2019 SLT 1143, referred to.
(13)Reyes v. R., [2002] UKPC 11; [2002] 2 A.C. 235; [2002] 2 W.L.R. 1034, considered.
(14)Suratt v. Att. Gen. (Trinidad & Tobago), [2007] UKPC 55; [2008] 1 A.C. 655; [2008] 2 W.L.R. 262, referred to.
Cayman Islands (Constitution) Order 2009 (S.I. 2009/1379), Schedule 2, s.59(2): The relevant terms of this subsection are set out at para. 16.
s.69: The relevant terms of this section are set out at para. 18.
s.70: The relevant terms of this section are set out at para. 18.
s.118(4): The relevant terms of this subsection are set out at para. 20.
Elections Law (2017 Revision), s.2(1): The relevant terms of this sub-section are set out at para. 25.
s.11(1): The relevant terms of this subsection are set out at para. 25.
s.78: The relevant terms of this section are set out at para. 27.
Referendum (People-Initiated Referendum Regarding the Port) Law 2019, s.4: The relevant terms of this section are set out at para. 29.
s.12: The relevant terms of this section are set out at para. 31.
s.74: The relevant terms of this section are set out at para. 32.
International Covenant of Civil and Political Rights, International Covenant on Civil and Political Rights (New York, December 16th, 1966; UK Treaty Series 6 (1977), Cmnd. 6702), art. 25: The relevant terms of this article are set out at para. 33.
The respondent applied for judicial review.
The Government planned to develop a cruise port terminal in George Town and to enlarge and refurbish the cargo port. A group called Cruise Port Referendum Cayman, of which the respondent was a...
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