Roulstone v Cabinet of The Cayman Islands and Legislative Assembly of The Cayman Islands (National Trust for The Cayman Islands Intervening)

• Jurisdiction: Cayman Islands
• Judge: (Owen, Ag. J.)
• Judgment Date: 19 February 2020
• Court: Grand Court (Cayman Islands)
• Date: 19 February 2020

ROULSTONE

and

CABINET OF THE CAYMAN ISLANDS and LEGISLATIVE ASSEMBLY OF THE CAYMAN ISLANDS (NATIONAL TRUST FOR THE CAYMAN ISLANDS intervening)

(Owen, Ag. J.)

Grand Court (Cayman Islands)

Constitutional Law — people-initiated referendums — framework law — Referendum (People-Initiated Referendum Regarding the Port) Law 2019 incompatible with Constitution, s.70 — s.70 requires general or framework law setting out ground rules for conduct of all referendums, not specific law enacted for particular referendum

Held, finding as follows:

The Referendum (People-Initiated Referendum Regarding the Port) Law 2019 was incompatible with s.70 of the Constitution. There was a lack of clarity in the language of s.70 concerning the form in which the legislature must enact legislation to make provision for the holding of a people-initiated referendum. The court must therefore give a generous and purposive interpretation to the provision which guaranteed an important democratic right. A general or framework law to provide legal authority for the administration of people-initiated referendums was a necessary consequence of the enactment of s.70. Without such a law, the pre-petition process lacked clarity or legal support in terms of any and all matters relevant to the pre-petition process. A law which authorized and explained the pre-petition process and the subsequent collection of signatures, as well as the process for verifying signatures and certifying the petition, was necessary to ensure a sound, transparent, fair and legal basis for any people-initiated referendum. The court accepted the plaintiff’s central argument that the “law” required by s.70 must be a general or framework law because it must cover the process of collecting and verifying a petition and any such law must necessarily be general in character. The rule of law required that limitations on the right to petition must be prescribed by law rather than left to the individual discretion of the Elections Officer. Another powerful factor in favour of the need for a framework law was the clear policy which underpinned the enactment of s.70, namely the promotion of the exercise of effective, direct democratic rights with a view to increasing the checks and balances on executive action. Section 70 conferred a direct democratic right on the people to veto the policy choices of their democratic representatives. It was highly likely that the Government would have a strong view on whatever matter of national importance triggered a binding referendum, which was a powerful reason in favour of the need for a general law setting out the ground rules for the conduct of all referendums rather than proceeding by way of specific, ad hoc enactment of a new law each time a s.70 referendum was triggered. To allow the democratic representatives to change the ground rules every time there was a referendum risked the rules being changed to promote their policy choice, thereby undermining the effectiveness of the people’s direct democratic right freely to question that policy choice via a fair and effective vote in a people-initiated referendum. A general law would not necessarily eliminate the risk that the odds might be stacked against those seeking to veto a particular government policy but it would reduce that risk. The inevitable tensions between direct and representative democracy was an important factor when construing s.70 and determining which form of legislative response best ensured that the policy which underpinned it was furthered. For reasons of legality and on the basis that such a law would best guarantee the constitutional right to a fair and effective vote ina people-initiated binding referendum, the court found the 2019 Referendum Law to be incompatible with s.70 of the Constitution because it failed to satisfy the requirement for a general law governing all s.70 referendums and was itself not in accordance with such a law. The court would hear further argument on the appropriate relief (paras. 55–66).

Cases cited:

(1)AXA General Ins. Ltd. v. H.M. Advocate, [2011] UKSC 46; [2012] 1 A.C. 868; [2011] 3 W.L.R. 871; 2011 SLT 1061; [2012] HRLR 3; [2011] UKHRR 1221, referred to.

(2)De Freitas v. Agriculture Secy., [1999] 1 A.C. 69; [1998] 3 W.L.R. 675, considered.

(3)Deputy Registrar v. Day, 2020 (1) CILR 99, followed.

(4)Hewitt v. Rivers, 2013 (2) CILR 262, dicta of Smellie, C.J. followed.

(5)Hunter v. Southam, [1984] 2 SCR 145, considered.

(6)Matadeen v. Pointu, [1999] 1 A.C. 98; [1998] 3 W.L.R. 18, referred to.

(7)Matthew v. State (Trinidad & Tobago), [2004] UKPC 33; [2005] 1 A.C. 433; [2004] 3 W.L.R. 812, considered.

(8)My Vote Counts NPC v. Justice & Correctional Servs. Min., [2018] ZACC 17; 2018 (8) BCLR 893 (CC); 2018 (5) SA 380 (CC), considered.

(9)R. v. Reyes, [2002] UKPC 11; [2002] 2 A.C. 235; [2002] 2 W.L.R. 1034, considered.

(10)R. (Barclay) v. Justice Secy., [2009] UKSC 9; [2010] 1 A.C. 464; [2009] 3 W.L.R. 1270; [2010] HRLR 10; [2010] UKHRR 86, referred to.

(11)R. (Chester) v. Justice Secy., [2013] UKSC 63; [2014] 1 A.C. 271; [2013] 3 W.L.R. 1076; [2014] 1 All E.R. 683; [2014] HRLR 3; 2014 SLT 143, considered.

(12)R. (Osborne) v. Parole Bd., [2013] UKSC 61; [2014] 1 A.C. 1115; [2013] 3 W.L.R. 1020; [2014] 1 All E.R. 369, referred to.

Legislation construed:

Cayman Islands (Constitution) Order 2009 (S.I. 2009/1379), Schedule 2, s.70: The relevant terms of this section are set out at para. 10.

s.118: The relevant terms of this section are set out at para. 11.

International Covenant of Civil and Political Rights, art. 25: The relevant terms of this article are set out at footnote 5.

Referendum (People-Initiated Referendum Regarding the Port) Law 2019, preamble: The relevant terms of this preamble are set out at para. 18.

s.4: The relevant terms of this section are set out at para. 19.

s.12: The relevant terms of this section are set out at para. 20.

The plaintiff applied for judicial review.

Grand Cayman was one of the few islands in the Caribbean where cruise ships had to ferry passengers ashore using small vessels. The Government decided to explore the development of a cruise ship terminal. In 2015, the Government announced that it was proceeding with the project which was by then linked to a plan to enhance the existing cargo facilities in George Town harbour. The project would destroy internationally renowned coral reefs. A group called Cruise Port Referendum Cayman (“CPR Cayman”), of which the plaintiff was a member, collected enough signatures to start a people-initiated referendum on whether the country should move forward with the proposed cruise terminal.

Section 70 of the Cayman Islands Constitution provided:

“70.—(1) Without prejudice to section 69, a law enacted by the Legislature shall make provision to hold a referendum amongst persons registered as electors in accordance with section 90 on a matter or matters of national importance that do not contravene any part of the Bill of Rights or any other part of this Constitution.

(2) Before a referendum under this section may be held—

(a)there shall be presented to the Cabinet a petition signed by not less than 25 per cent of persons registered as electors in accordance with section 90;

(b)the Cabinet shall settle the wording of a referendum question or questions within a reasonable time period as prescribed by law; and

(c)the Cabinet shall make a determination on the date the referendum shall be held in a manner prescribed by law.

(3) Subject to this Constitution, a referendum under this section shall be binding on the Government and the Legislature if assented to by more than 50 per cent of persons registered as electors in accordance with section 90.”

The Elections Office conducted a verification of the signatures on the petition, requiring signatories to reconfirm their signatures and allowing people to “unverify” their signatures. The requisite number of verified signatures was obtained.

The Government gazetted a bill: “A Bill for a Law to provide for the holding of a people-initiated referendum on the issue of whether the Islands should continue to move forward with the building of the cruise berthing and enhanced cargo facility . . .” The Bill provided for the holding of a referendum, that the Cabinet had determined that the referendum would be held on December 19th, 2019 and that the Cabinet had settled the referendum question: “Should the Cayman Islands continue to move forward with building the cruise berthing and enhanced cargo facility?” Attorneys for CPR Cayman wrote to the Government setting out reasons why aspects of the Referendum Bill were incompatible with s.70 of the Constitution and thus susceptible to judicial review. The Government tabled an amendment which addressed some of the concerns. The Legislative Assembly passed the Bill as amended: the Referendum (People-Initiated Referendum Regarding the Port) Law 2019.

The plaintiff was granted permission to apply for judicial review and the referendum process was stayed. The National Trust would be an intervening party. The sole ground before the court was whether the 2019 Referendum Law accorded with s.70 of the Constitution.

The plaintiff submitted that the 2019 Referendum Law was incompatible with s.70 of the Constitution on the basis that s.70 required a general or framework law rather than a bespoke law enacted to address the specific issue of the cruise port referendum; alternatively the Referendum Law was flawed because it failed adequately to protect the constitutional right of Caymanians to a fair and effective referendum. The court should take a broad, purposive approach to s.70 and should also take into account rules of international law. It was submitted that the absence of a general referendum law and the Legislative Assembly’s hurried decision to enact an issue-specific law for the purposes of the cruise port referendum had caused serious impediments to the holding of a fair and effective referendum. The...