Statement
on Court of Appeal ruling

By
Premier Hon. Alden McLaughlin, MBE, JP, MLA

2
July, 2020

Legislative
Assembly

Madam
Speaker,

Earlier today
the Court of Appeal ruled that, contrary to the earlier ruling of
Acting Grand Court Judge Owen, section 70 of the Constitution does
not require a general framework law for a people-initiated
referendum.

Madam
Speaker, as you are aware the ruling of Justice Owen in March this
year that the Port Referendum Law was unconstitutional effectively
put an end to the Port Project and the loss of millions of dollars.
The plaintiff was not required to give an undertaking in damages and
therefore the Government will not be able to recover any of the funds
spent on the project up to then or the large sums spent by the
Elections Office in preparation for the referendum.

Madam
Speaker, this Legislative Assembly enacted the Port Referendum Law
2019 and preparations were well advanced for the holding of the
referendum.

Ms. Shirley
Roulstone as a proxy for CPR; and the National Trust judicially
reviewed the decision of the Legislative Assembly and the Cabinet.
Justice Owen found in their favour-holding, among other things, that
S.70 requires a general law and therefore the specific piece of
legislation passed for the Port Referendum was unconstitutional.

Madam
Speaker, the Government was always of the opinion that the ruling was
wrong. Hence the reason why we appealed to the Court of Appeal.

Today the
Court of Appeal agreed with the Government. The Court ruled that the
absence of a general law does not in itself prevent or inhibit the
right of every Caymanian voter to participate in a fair and effective
people-initiated referendum and the Port Referendum Law 2019 was
therefore not unconstitutional.

Of
significance to the Government and this Legislative Assembly is the
Court of Appeal's observation to the effect that the Section 70 power
given to the Cabinet to set the question and fix a date and also the
responsibility given to the Legislative Assembly thereunder to enact
a law shows that the form of direct democracy created by S. 70 does
not oust the representative elements of democracy.

Madam
Speaker, the reference there to the roles of the Cabinet and
Legislative Assembly is of enormous significance when read in the
context of what Ms. Roulstone and the CPR would have us believe.

Indeed the
court was firm in its rejection of their arguments to the effect that
the Cabinet's role in setting the wording of the referendum question
was limited to "drafting details" and the Legislative
Assembly is no more than a party to the debate.

Madam Speaker, of immense relief to the Government is the Court of Appeal's clarification of the doctrine of the separation of powers. The court, in its judgment reminds us all of the wise counsel of Lord Nicholls of the United Kingdom Supreme Court when he said that courts must abstain from any course, which might have the appearance of judicial legislation.

The Americans
refer to that as judicial activism.

The
Government accepts and supports the independence of the Judiciary and
its role in interpreting the laws. And Madam Speaker the doctrine of
separation of powers requires that the courts in return, respect the
role of the legislative branch to enact laws. What form a particular
piece of legislation takes is a matter for the legislature, provided
it is otherwise constitutional.

The
Government therefore welcomes this clarification by the Court of
Appeal. We also welcome the court’s clarification of Section 70 of
the Constitution. A clarification and an interpretation that the
Government has always advocated.

Madam
Speaker, it is only appropriate to observe that the government
accepted before the Court of Appeal that there had been a number of
"false starts" by government in seeking to enact the law.
This is to be expected given that it was our first attempt at using
S. 70 and there was not much precedent to guide us. However, the
government was always of the firm view that because S.70 makes no
express language about whether it should be a general or a bespoke
law therefore it was open to the Legislative Assembly to enact a
specific law for each referendum provided it was otherwise
constitutional, and therefore that the Port Referendum Law 2019 was
always constitutional.

Since we got
the ruling I have seen a press release by CPR and stories on CNS
about the ruling. CPR is still claiming victory. Without question
their actions have had the effect of derailing the port project. For
that they are celebrating and a number of people along with them.

One of the
great ironies of this exercise is that CPR were arguing all along
that what they were seeking to do is protect participatory democracy
in this country to enable everyone who is entitled to vote to do so
in the context of this project and the referendum, which it has
triggered. But they have achieved the opposite result.

I do not
think they were ever interested in the referendum and the people
having the right to vote; instead, they had the narrow interest in
stopping the project. They have prevented the electorate from being
able to register their view on whether that particular cruise port
project and ancillary cargo port project was a good thing or not. The
country is no closer to knowing one way or the other whether this is
something that should go ahead.

Those who
labour under the misconception that the Port Referendum Law and the
petition that triggered it will survive the next general election do
not understand the basics of the election process or the
constitution. Whichever administration comes in will come in with a
fresh start. If it is their policy to press ahead with a cruise port
that will be a matter for them.

What CPR have
done is two things: they stopped the project but they also prevented
the people from having the opportunity to vote whether it should go
ahead or not. If that is not a perversion of the democratic process,
I don’t know what else would be. This government is not going to
pursue the project during the balance of the course of this term. But
this project is not going to go away whether I am here or the Deputy
Premier or any member of my government.

This is a
crucial issue and a national decision that a future government is
going to have to make; whether or not we want to resume a cruise
industry in this country. We are going to have to provide proper
facilities for those who come via cruise ship if this is a business
we want to keep. That is a decision that is going to have to be part
of the campaigns of the platforms of those who seek to contest the
next elections. It is not going to go away.

The thousands
of people who are unemployed who this government is trying to help
are all going to need jobs, not just now, but in the future. If they
do not have the opportunities offered by the cruise industry they
will have to find work somewhere else.